Petition for Writ of Certiorari — Armstrong v. Commerce Tankers Corp.

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Supreme Court uf the United States |

; October: Terms, 1970:

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CERNEST A. -AR MSTRONG.

- Petitioner,

COMMERCE ANKE RS CORP. ;

and [i MPIRE: SHIP

: AGENTS & BR stage TS CORP.,

R espoudents.

Petition for a Writ’ of Certiorari: to the United States .

Court of Appeals for the Second Cireuit.

Grorce J. ih NGELMAN, .

Attorne Y for Plaintiff- ee dat.

| T1 Broadway,

New York N. Y. 10004

- 4

THE REPORTER CoMraANny, INc., New York, N. Y. 10007—212 73 6976-1970

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: f ‘Table of Contents. - ‘

a! ’ Page eye

. . * a ; igs .

The Opinion of the Courts Below «00 1.

PUTRI cg ie i ee eer ¥

: Questions. Presented for Review. _

° ‘ ° . yee : :

‘ - . » . s9 e

* Statutes: Involved — 00.2. ae. ee or aeade eben ”

Statement of the Case 20 00. nd ee ay S eatineneae fr:

Reasons: for Allowance of the Writt 00... a eae

4 CONCLUSION, For the above reasons. a wr it. of cers

tigrart should he granted as prayed beer econ 8

Index to Appendix.

, g ‘Opinion gfe United States District Coat... cetate Me. BA:

“Opinion of the United States Court wt Appeals for ee

‘the, Second, c ire cuit otaceate aees rhc wcey PES Sect chs me 8

: * *., % 3 : om a as

; ( 4 oc ; 205, = ny e, /

; JudgmentAppealed Bika tage RON AR NBL sae tg 7

oot TABLE OF CASES, ee iis

. . ‘ F sa

Pérguson'y. Moore- MeCormack L. ines, Bas do2 US, * ae

‘Na iieewnoileeona ee Ge ea ee ° 6, 8 f

; “et

? yee ; re ¥, fer

Gallick v. Baltimore & Ohio Railroad Co. 312 CIS. GH.

108, 4 FE Hea FURR GEN Bod lee sia wohl ie EN t= <

Howarth’ v, i Ss. Shipping. hong Mimergene y F’.

: Corp. (C. A. 2), 26 Fo Od B96 cs 7

wdaecob ve City. of New Yerk, 315 U.S. 752. 757.

ae ciynibx Pes

Johnson y ES. 333 US. 46.48, 49, 50.

—

Lavender vo Karn, 327 02S. 64 at pp. 652. 653

-Long ve Ennion Pacitie R Go. (Cy AL 10), 192: F. 2d

SS, Ay iat ite fh

yy] 4s P Pe a aa Reh aM ara MEER ee

Miehalie vy Cleveland Tankers. Ine. 364 0. S. 325,.

“oe

-re ld : : : Reo ae : s

Cenans ov. Nedertandseh Mincrikaatnscho Stoomy,

~ Matt (0 A.-2), 410 Fo 2d 78, Sh, B2 :

OHsen wv. States Line (C. AL 99. 37S FL Ad 217, 220 -.

Rowers ve Missouri Pacific Railroad Co. 552 U.S,

SOO S06. SOS : Fete as .

“Schultz ve Pennsvivania Railroad Co. BAQ US. 525,

Socony Vaeitin Oi Co. ve Sitth. 305 Ul S. 424. 427°

States Steamship Co. x. Berglamn (CL. AL 9), 41

fy . °

thee. \.% Pa PUA A wt ;

oe é a . -

. ee

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¥ oTEt @ FEU ET rEv Ee ce

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aos

ederal Minployees’ Liability. Net. 35° Stat: 65. as

amended, 53 Stat. 4444, 45°C S. 2 31. 450

a a A ee. Mee te

“\ : a

Jones Aet, SS Stat. LISS. as amended. 41 Stat. 1007.

461. S.C. 688.46 U. S.\G. AL GRR |

YS UL S.C. Sections 1254 I) and 2101(¢) = ri andinhsoenian

McCormick Shipping Corp. v. Stratt (CL AL 3) Be BF.

Tennant vi Peoria & PLU. Ry: Co. S214. S. 29,”

Siprcew Couri

Ocroper Tera 1970. ate i -

eas

° ——, .

Kresisr AS ARMSTRONG.’ ey peers

“e ; ; ae _ Ag: RS is tition r,

i » ; aon

me : ‘ en : 4 2 a * . x ;

~ComMeEerce. Tankers ¢ 1 Yew and ie MPIRE Sm@ip AGENTS &

a 2° Brokers Corp. . *

: , ; D> Rex pord: wls, %

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Petition For Writ of Certiorari to The United States

Court. of Appeals For the Second Cireuit.

s Petitioner, Ernest A. Ayiustrong. respectfully pravs

that a writ of ce#tiorari issue to review the judenien

ofthe United States: Court, of Appeals’ for the Second

Cirévit which affirined the judgment of tht United State.

“Distriet Court for the Southern -Distriet of New York

entered in faver ot the respondents carter the trial judg.

set-aside oa jury. verdict In favor oof the Petitioner

granted) Respondents’ motion for a direeted verdict ne,

granted judgment N.O.W. for Respondents. Fea

The Opinion of. the Courts Below.

a ‘ . “ eee “4 Pepe I ae

The opinion of the United States Distriet Court. for

the Southern District of New York by Judge’ Richare

TL. Levet is reported in SELB. Supp. 1236 ahd appended

hereto (App. ppe9-2b). The opinion of tl. United States

Court of Appeals ‘for the Second Cireait by “Judge Rob-

ert PL Anderson is reported in) 423 FP. 2d 7957. and. ix

appended hereto (App. pp. Zoot), fe

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‘s . 2 , ’

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Jurisdiction.

AG dee ‘inion ane judyinent of the United States Court

Nope ‘als ror the Second € ede sought to Ine. revViewee

. sas decide d anil ente ‘red May

Jie eto ( Ap ss pp. St), . ate tee ae J

Petitioner's’ time. for filine* a petition lor write of” cor

‘tiorari int this cise Wats eXtended to and including Au.

xust la, 1970 bye the, order of Mr. Justice John M.-Har

‘lan’ dated May 27, 1970 and is appended hereto (App.

ely: re pen ehi :

os ses ree o" @ «

The jurisdietion of “this Court to review hy writ ‘of

ceertionari the judgment complained. «

2S US. €. Sections T2544 )-und 210 ie da

. “6

. ; é ee, es . e a

at) (Questions ee eee | .

Ce conferred hy

TOTO aad cis ‘appended@

Inn eLones. Act personal Injury aetion Arased. mres on -

athe Phiuintitf Sennugan's own te stimony th

(I) Is ¢ ire Htstantial evidenes ‘et nevlivenae suffie lent. -

or mist his ‘ease “he supported hy evidence Gf pte Rag

from one whe Was present oat) the time. of the OCCU

"rence? - -

(2) ws i jury infer that the conetiet of oa fellow

crewnian Was negligent and the causative Facto® ino plain

ts injury where the « irentastandial evidenee clearly

SUpports sedi inferences? se : A.

13) May a District Judge set aside a jury verdict ‘tor

the seaman find erant Judement. NOY, for. the shipr

owner, thus dépriving him of his constitutional right. to

au jury trial, where >the circumstantial evidence ° clearly’

"+ supports inferences of negligence and causation?

. » -

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“et

‘

; 26% . uy _ Statutes Involved:

The Sele. hak 3s Stat. ISD. as oe 41° Stat

1007, 46 U.tS.C.. G88, 46 US. Cl AL SS, The as

Employers” .L rope Net. To State Go. as amended.

Stat. 14 (bt, 40, if al: 45 0: ag ee, Gert 8

The peittine nt part yo the Jones Act. 6 TA A

OSS, reads: : e

“Any seaman who shath suffer personal injury

in the: course - ok his employ ine nt riety. at his, elee-

_ statutes of the United States: modifyitig. or extend

~ ing the common-law right or remedy “in etses 0!

peruaat injry to. railway einplovees shall appty:

| Tlie prertine nt art ‘of the I ‘edvral een rs’ Liability

“+ Act, 45 UL ST As al, provides * that tlhe miployer! hall

a Me. liable: . eee = —

° P a , s .

for osueh angury tor cheath resultine iM

Whole or in? part droem the neglwenee cel any iH

‘the office ‘Ts. “agents, a io mploye, es of os thet iz aut rie

Se ¢ #94

foe Statement of the Ease.

The United States Distriet Court below acquired jaris |

diction as petitioner's suit’ iss based on. the “lenes Net,

46 7. 8... A; GSS, “The. pre-trial order charged: Ahiat

Respondent Commerce Was “negligent in that ore of its

employees negligently slammed a seg? 2 dogr wlule

Petitioner’s* thumb was init. “The issue, 6 liability: Was -

tried first: at the end. of Petitioner's case Re ‘spondents

rested ‘and moved to dismiss and fora directed verdict.

The Court reserved > dedision on both motions amd sub

initted the eause to the jury ona Special verdict on writ

~ ten inter rogatories. The jury found: that Petitioner’

tion, maintain sir action for damages at law. witle*

the right of-trial bw Sjurt, an in? such. aetion all >

4 ff

injury Was. proximately caused biy the negligence of- a!

coeenployee; that unseaworthiness had not: been proved

and that side Wiis not contributorily negligent.

After the ‘trial of the damage issue the Distriet Judve

cenied ee Lee at motion fo set aside the verdict for

excessiveness., granted their motion for a directed) Ver

diet and granted then Judgment NOW. The United

States Court of Appeals for the Second Ciretit: affirmed.

ies nt Coimmerce cniploved the -erey of its SAS

Phittlia Mhiding + Petifioner, an ablechodied seaman,

“After working ap proximately six touts during the. pres

ceding cight hours. Petitioner, off duty, at about SA.

Macon April’ 20. on invitation and for relaxation entered

(te Dunkroom or .quarters. of ‘Darey, ai fellow erewman.

There were present: petitioner, a white-haired Wiper, a

machinist ane Darey, all were me ihe sof the CTOW cOon-

Versation consued.. The wiper was talking about. vine:

‘a jilane amd stated: that be wrated to he a hilot: Peti-

loner said. “Well, why don't vou de it?” The wiper

Lever olfense at the remark. Petitioner, who chad heen

Usitting ata hunk. near a door whieh was te. his left-and

nstde the room. got up to) leave as he did't want any.

rote as he turned to his left toward the door ~Darey

put his: hand on petitioner's shoulder and said. “Yes,

vou hetter go.) Petitioner then lost is balgnees he awas

UH inside INO room and about! 24.7 fear from the door

sill: he reachell out with his left hand tot regain his. bal

anee and erabbed the door Jatab with his) thiamb enter

Ing the opet spaee between the door jamb and the hinged

cdge of the door. The door then slammed with force

crushing his thumb, Darey was directly behind. Peti-

tioners a little toe his left and Within one stride. of the

edge of the door when he put his hand on Petitioner ‘x

shoulder, :

The doer was fully. open immediately prior to acei-

dent: it- had not moved during: the one-half hour Peti-

, | ae ;

tioner Was in the: fooms the vessel was at anehor at

° 7 ae ° vir . “

Singapore and there were only slight swells. Phe door

was ‘the usual bunkroog door without a-eheek to slow it

down when it closed. Petitioner ‘did’ mot: mikes any con

tact with the doo: The condy: persons in the ream when,

the door shunmed avere the wiper and Darey. Petitioner

could not Ae who slammed the door for when his hil

Was dn the open. space between the door jamb and the *

hinged edge. of the door he was. faeing the “other way.

2 ® "i .

or the “passageway: but hie then knew that: Darev wie

right bebind®™ him and “within one stride of the edge or

the door”,

On the preol the only foree that ould? have shamed

the door-was human intervention simnside the room. As

the jury absolved Petitioner, there remained ‘inside the

sroom only the co-emplovees Darev and the aviper as

eSeauses: the jury properly concluded that) one of them

did- it) when Petitioners was exposed to injury fremia

slanuuing door.

~ Reasons for Allowanee..of the Writ.

The decision a} the Courts below post SH HCW, Ware:

onerous anid 4 vaclhnud stitudaprd at burden oof nioot ‘it

Sones wlcl CON ae disc ih ts WW confliel, OW thie Lasts at fact

and . lage, with the decisions of this Court and othe

United States Courts of. Lppe al, Tt legt staniling ihe weil

advers ly affecl tlie Joes lal rolls a] SCOMEH,

“Relying entirely: on veneral negligence cases and Pros

ser Torts, in) granting judgment) N.O.W. for Respond:

ents, the District Judge fashioned anew rule of bur

der of. proof i seamen's cases, holding that. the sseaman

must prove that his: employer's negligence was a_hasis

“sforcall reasonably ‘probable causes ‘to which the acei-

dent should be. attributed’ (App. op. I4). and that

the negligence Was “Ca substantial: factor in bringing

- about the result’™ (App. op. Ud). The proof limited.

the “chaice of probabilities” to the narrow issue of who

slaniiied the door. When the jury exonerated the Peti- ,

‘tioner of any negligemee, jt was compelled to find that

either Darey or the wiper aid it cand “ehoiee of proha-

bilities” was removed from the case. The rule promul-

gated by the District Judge and lest Gukeibed by the

Court oof Xppeals is in direct conllet with a long line of

decisions of this Court. in Jones Act and? hh “USES,

holding that it ts not necessary for the proof” te exclude .

al tauses but the neghevnee of the emplover, that it is

sufficient if emplover negligence ix Oxtablished as one of

the. possible causes. Tennant’ Peoria & POU, Ry. Co.,

os et A Ss Lavender vr. ax aoe U.S. 685, 653:

Nehalt: 7G), eet Ae Raitroad -('H., 0 : S. 23:

-O5).

Rodgers > Pos Pacific, Railraad Co. 352.0. 8. 500."

MGS Bergson 0. Moore-MeCormack Lines, luc. 332 0.

s. het s Gallick Baltimore & Ohia Ratroad C'o,, 372

US. TOS. TE.

ua os we Paetuid recitals Without citing a single

Jones * PAL. a ease, the Court oof Appeals affirmed

on the eee that, © * there was no faet shown from

Whiely an net of ne solivenee could be inferred” (App... pr

The Distrier Inde made mucheof the fact that neither

Darey nor the Wiper were called by the: Petitioner in

support of his case ( App. Pp. 19. 20). Petitioner was not

required to prove hix CuSe Th direct. evidence, for “Cir-

cistantial evidence ix not only sufficient but. may also

he more certain, satisfying ind persuasive than direct

evidence.” Wichalic re Cleveland Tanke ‘rs, Ine., 364 VU:

SS. 25), 330 > Rogers ve Missouri Pacific R. R. Co. (supra),

at page 508: es aoa OP . S., 333 U.S. 46, 48: Long vr.

be ota Pacific . nie be aig “192, KY. 2d 788, 790: Olsew

Slates’ Line A. rhe 37S 2a 217, 220: Ofmani r.

LL ars ae wis mee 60. A, - 2),

410 I. 2d 78. Sl. Long yen Is squarely | | point. for

it rests solely on the periissille jury inference that one

sor two co-ciployees Long ‘saw near ai bunker door,

os Sjaist prior to the accident caused it to fall and

“strike him: both co-0 Miplovees were present vat the trial

but were not called. Even if Darey and the wiper had

testified that) they. did) not. slam the door Petitioner's ”

testimony. alone, would still havesraised an issue of fact

for jury determination, Socory acu» Oil Ca. cr.

Smith, 305°U. S. 424, 427. | pai |

Not only was the jury permitted. to infer that. either

Darey or the Wiper slammed. the door, it was permitted

to conelude that such conduct was neghvent. Joluwn vr,

ue. fat pe ds. 49. supra): Loug ro wiow Pacific R, a} at

fat p. (90, supra). NX door is an instrumentality whieh

May cause injury by slamming, Mowarth ool, ‘“ Ship.

ping Board Mmergency Fk, Corp. (ALS) Sa ae

MeCormick Shippuur Corp. e. Strat wt’. A. 5). Sas os

yd O48: Stdles. Steanighip Co. pe Be ralann 4 Some, at

Fr. 2d 456. An employee who failx fo éxereise renson

able care in handling a door when-a cco-emplovee is.

Within range of injtiry from it. ig qiegligent. Sfotes

Sleaiush ip fea, 2 ie rohan 0 ee Loud em Union’ Pa

cite BR. Co, (supra), Petitioner's ease is strikingly simi. -

dar to that of Johusou rm OLS. (at p. 50. sipra)., wher

this Court held that) solely on. the haxis of Jolnsen's

testimony the trial court was entitled to infer that) his

s coemployee working above him was negligent in, dtep

ping a block on him.) * * for hman expertence tells

us that eareful men do not customarily do such an aete

Soa careful employee does not slam a door when: his

_ fellow employee is not clear of it and vulnerable to in.

jury. In Johnson (at po 4osupra) this Court held that

the rule of res ipsa loquitiir was applicable, for “Ne act

need be explic ra only in terms of negligence. in order

for the rule of? res ipsa ‘loquitur to he invoked.” Peti-

Ummers cise was tried as the pre-trial ahr alleged: Gy

the -eround that 7 co-omplovee Was negligent in slain

ming the doer when: Petitioner was not celear of. it. Pie

titioner proved that heeligence by jury determination

snd it guakes no difference that he did not dahel his cause,

one of res ps a] doquitur, Ohman i, Nederlandsch-. Liver.

dardiuscdie Sha Pelee, a Cat }). Oe Spa),

The test of av dones: Neg jury éase is not) substantial

hegitice nen as the. District Andee proclaimed (App. |).

by dt arm negligence no matter how sheht which is

at cuusative factor, Fergusou vr. Mor Met ‘ormdck in S,

fice (at page a2 sepray. Yoto the Court of Appeals

retiked to eVen orsider the SCO “aL perinissible in

ferences the \ jury owas entitled’ to’ make. usurped its

Himetion aad deprived Petitioner of his Constitutional

right toa Jury trial whieh ois an Jntegral cand vital

tatrt of his retnedy under the Jones Net. Jacob or, (iL ip.

SOW POF Re Mad oS aa, Gone CWsLarender'r. Kuru

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a eee PIES Ol Oe SMP, é . ’ . 3 :

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Prt . $ : , .

For the tbove | reasons ao writ of certiorari: should) be

. ranted as : prayed for.

+. [tesjweeftully submitted. °

. - GEORGE I ENGELMAN,

Attorney for Plaintiff AppeHant,

; , I] Broadway,

‘ . or j ; New York. N.Y. 10004

APPENDIX.

Opinion by the United ‘States District Court.

U NITE D STATES, pis RICT COURT:

cerns Disrrier or New Yor,

a ee

ORNS A. ARALS RONG, “*

Plaintiff.

against *

. ° . : +

ComMerce PAN KeERS Corp. and lepine Step AGkx is &

Brokers Corp, ae ‘ Epes

As Defendants.

Oo Civ, 2074

. —_—_—— wats

el .

Appearances :

Paul C. Matthews, Attorney for Plantill.

Hill, Betts. Yamaoka, Preehill & Loneeope. Attorneys

for Defendants. ts ar ;

‘Lever, D.S: a :

This is a Notion for Judainent, NOY. for defendants

after a Special Verdict holding detond: ants Hable to pala

tiff for negligence in a seaman’s action for personal in

Juries. A copy ol/the Spécial Verdiet is hereto annexed.

Under Rule 42B ability was. tried’ first.

Also. at the conclusion of

the trial on-damages in the

above-entitled aetion (1) plaintiff moved to set aside

the verdiet as Inadequate: and (2) ‘defendants moved to

set aside the saine terdic¢t as excessive and as ine onsistent,

Subsequently, the plaintiff withdrew his motion.

a . iS 10 eee oe

Ths the pretriat order (Cp. 1) the “phiintitt. contined his

Claim of neelhige nee of dete ndants to the following:

‘ t

ae * *

and tne to the negligence of the dete ndant

— Caermme ree anel thert (he irles Darey ar some “other

emplovec of the defendant negligently sli amas the

sloor shut While the plaintitf’s thimb Was iIn.it.’

The. pretrial ¢nemorandani of phaintitt stated that “Plain

Ti is not relying on\ the. doetrine-7T res ipsa loquilure

Mle also declared: Print may eal Charles Darey or

UNA ther Ter aft the erew having Know fede. of the

——tiiets.” ' A

| On ‘this verdict, the jer held delinbiate. liable. for

negligence. but not liable for tse Aworthine sss and de-

termined th at dete slants had not shown pli tintilt euihty of

contributors neeliwener, . saz

At. the ond of plamtifh’s case on liability and” at the

end oof the trial ot that: issue, defendants” newin moved

(Vi) to dismiss the action for lack of proof of negligence:

and (2) for a dirgeted verdiet for defendants. By reason.

of the jury's verdiet detinst plaintiff on unsetworthiness,

defendants did) not renew. the Motion as tO that faetor,

The court reserved Cecision on. the notion In respect

te Neelioe ‘nee aad on the motion for a direeted verdict,

The court then tried the iSSHOo as to damages to the

_Jary. which returned a verdiet for plaintiff in the sume

ol RPO. © The Theat renewed the ‘motions fer,

dismissal dine Judgment NOV. with re pert Lo ne lige Nee,

Between the trial of liability and the trial of damages

thder the Jones Aet, the parties aereed ton judgement

of $2,000 in faver of plaintiff to, cover plaintiff's other

celaims: (1) Wages (other than overtime) to the time

of termination of the vovage: and: (2). Maintenance and

Cure,

‘Copy of Special Verdict is hereto attached, .

: e

. 43

pre |

Pending determination of the: present motion. entry. of

judgment has been staveds — . 1?

: Upon a motion for a directed verdiet. defendants admit

every faet in evidence whieh tends to ststiin plaintiff's

-ease and every inference reasonably inferable therefrem..

i Hellweg me Chesapeake “Cl Potomac Telephone CO, 110)

F. 2d 946 °*( D.C, Cin 1940): Worceste r, of al, V.Pure:

Torpedo Co. 40°F. 2d B58 (7th Cir. TO4A)- .

The proof itself. as far as it woes. is mot) disputed.

For the purpose of this motion ‘the facts are as ce

Plaintiff. Armst rong, started to vo to sea in 151 Ane

served asx deek hand. On April 19, 1967, plaintuf joined .

defendants ship. the SS Thalia. at Singapore between

7:00 and. S200 PLM. and Was assiened by the Chief Mate:

to the 12 to 4:00 A.M. watch (SM 3-4). )

“That night he worked as a cganeway - SOCULILN: A

‘from L? miidnielt to 4:00 Ke. M.. Whien hie went to the

-mess halle had ao sanelwich. and went Jbelow. avhiere (he:

slept until ont (5). Phen he assisted in taking -in

some Stern lines ‘te “effect a change @i. anchorage until

about 8:00 A. Me (6), eas

After washing up in leis foreeastle. he went te visit on

~Triend, one Charles Darey, in a reom on thé port side of

the ship (7). “THere he found Darey. a “whites haired...

Wiper,” and aimachinist holding a “disertssion” whieli con.

tinued about: 30 minutes, during. which tine “the Wiper

talked about being a pilot. Plaintiff sat on theo ede of

the bunk with the door whieh cepened imward on’ his

left (8-9), ime ee ies ae uN

Mthough the wiper, had never flowne a plane. he saied

he wanted to be a pilot. whereupon plaintiff sugeested,

“Well, why don't you do it” wheretipon the wiper “got

mad” and plaintiff rose to Teave (0-10), ap oat

The? critical episode then followed. «Armstrong «got

Up. spoke to Darey, and turned towards the door’ to

leave, Darey came over to plaintiff. put lis hand on’

“- 3 . =

“plaintiffs shoulder, and said, “Yes, vou better go” (10).

It-mmust be note here that there, was ho testimony that »

Darey pushed or propelled plaintiff. The door opéned

inward, = oe .

Plaintitt continued. “I was stepping towards the door”

CL). The door was open” (90). "Tb lost my balance. 1

rencheel yt to stonely: NV Se AY, -fevrabbed the. (oor jatih.

My. thutub-was in-line) with the door Thea the door

Brig he Closed owith Toree con ans thumb" (TL )e Ange

playitill said. Phe coor shamed” but he saw nobody

_tovich the (oor 63). -

At threat’ time the condition of the sea wats

hut plaintiff said the door had not-moved. The machin-

of ist tiered Lett canned only plaintiff, Darey and the wiper AWETE

im the room £11), ea : ‘ a ‘

AMthoueh the door Wits Hot equipped: | with ae door

cheek (12). plaintift’ said this.deor Was the same “as any

‘slight swells.”

other dleor eoing intooany other man's livin qiarters.”

und the same-leind of dooras on other ships (20),

The door worked, Was not broken. was “Okay” when

Arinstrony Ope ‘ned it-(26): “When he ‘lost: His. balance, be

said he started to fall from one side to. the other and

reached up with his. left hand? and erabbed . the door

jamboon the side where the Winges, were (30). with his

“thimboin the door jmmb-Ca3y.- - | sa

Plaintiff denied touching the coor wee and denied

Seer AYO hounch the doar di fhiat fine CA 31). ;

At the court's request, plaintiff re-enae a A accident

Hirough. a demonstration ata similar door opening into

the court room (49-53). | Cid, we

Plaintiff said neither Darey nor the wiper was near

the door Plaintiff-could wot explain how the door moved

vor why WM moved (53). +MY the time plaintiff started

to lose his Nalanee, Darev was at his lest (54). The door

“There was no evidenee as to Whether qilaintiff was right or

Jett arded. ; ‘ ’ ‘* :

ne at plaintiffs right. Neither Darey aor the Wiper

was cafled to testil'y vane no explanation sto their

whereabouts: i ia nt employe nt Was aig

hy the plaintiff whieh resulted in the placing 6f a left.”

thum> upon the door jamb a little above his hee

a uryvsterious closing of the Mook: unex plained as to cause

by plaintiff or any one else,” ~ .

‘The question: of course, is this: Mas plaintify shown

. wun

any negligence on the part of defendants? epee Se

Afthougt there is no evidence .that) either Darev. or

the wiper was -closine: the door, and. in’ fret, plait iy ~

own evidence Is toythescontrary, plaintiff seous fo elaiin

“that there is some inference, however it nay be derived.”

“that cither Darey or the wiper aid) something to the

door, “This, cat Course, Ix speculation. Ine any event,

“even if we assume that it had occurred, this fact alone

dloes not warrant any conelusion, absent knowledge or

observation that plaintiff hia l his thumb. j In the jamb. of

any negligence on the part of Darey or the Wiper, | Dives

or the Wiper would have to have’ closed tlie door with

knowledge of plaintiffs vulnerabilitw. or would have to

shave acted unfteasonably creeklessly. Noo such evidence:

Was presented, |.

PRoOPRIETY OF ¥ Dinkere Ip Verne ee tre

“A directed verdict Cor peremptory instruction) ‘is!

= . . “8

proper. when the evidence is without contliet and is such

that all reasonable men must agree on. one conclusion,

-orewhere the evidence. is- insufficient to sustain a verdict

ie the party against whom: the motion is directed.” HOA,

“dS. : Negligence ae a }). 2: Pickering % Corson,

ee BF. 2d 546° (7th Cir. TO): Mem phil ov. Mississippi

Power ‘Co. S4 Pe 2d ont (oth- Cir. 1936), ‘ a

™——__

“FL Pd W708 184 (2nck Cir, INGO) and eases cited on pr. IS4.

-. Berpey or. Proor-

: : 2 o*

Ana personal Injury suit the burdén of proving defend.

ant’s negligence is on plaintiffs. ltt. Martin wv. Uvited

States, 225 FL 2d 45, 4S ODL Cir, 1955). C.J. Miller

stated 2 : | : = . ° peta ke i

siete, said in FLW. Woolworth Co. e Wil

haus, supra, ov App. DCL at page Sas. 44. FF. mT

at page UTES. : ea oy pt

: “The Burden of proving, defendant's revligence. cf

is upon ‘the plaintiff. The mere happening of the

~aecident does noteshift to the defendant the bureen. *

of establishing -that the aceident did) net ocenr

through-its negligence, nor does it Create a presninp-

“y thon cor neeligence, (di the COMEREY, the legal

presumption is thart reasonable care was exercised

hy thesvlefendant. * D

; as ne ” , foe : hee ,

See rdse Tarxhle CCR r. lessen rated Prdusport, Des. ra aa

“The plaintiff has the burden of proving by a’ pre

ponderance cof the evidence that he awas injured by den

fenélants” netligenes. The. injury must’) be traced te

Specific instrimenfality or eause for which the defend-

“Ant Was responsible or itpmust be shown that defendant:

Was responsible for all reasonably probable causes to”

Whieh the accident could he attributed” Law cof Torts.

Prosser, rp. De, 228s Maul yt, New York qi b> Co. 18

N.Y. IS ¢1951). . |

As to the proof: of eausation, Prosser writes as. follows:

““On the issue of the faet of causation. aston other

issues essential to his cause of action,.for egli-

e *° gence,.the plaintiff. in eeneral has the burden of”

ay ag ee | rae 15 : pe é z

F | Soe ce De prool™ He Miuist introduce ey idence Whrieh atboreis.

i bre oe os isongh le basis for- the conclusion thitt) ot i.

Rate Tutte snore’ likele than not that the conduet of the a

ae. fendant was-a subst: initial fac tor y Wringing ebonit

7. othe result. Ao mere possibility), ot sueh enusation’

isnot enough: and when the matter Femains one of

pure speculation oF conjecture Hor the probabilities

Rt tg pre at he st aventy halanecd, it becomes Thee huts

(ite see ln 3s OE the court to direct il ven adie Por the cletonedsarty!

* . «4. 2 eee ag . 2 yee | ee ty

“a | Prosser on Forts (: ore) mad.) oth

b i . - °° ®

ITI. CN Aa

UNbrn tite Stones NGr rit phar rire owas nari

‘ OFFER MORE “TEHEAN AT MERE se INUILEA OF iV Ib xO}

ep . Federal, courts: have held that “acmere. scintilie ats

dence is not enouh fo require re Subp Region of ane

sue to the jury." DeZéoa' co Maerican Pyegsidend Len

eae Ltd. 129 BF) 20-404, 407 (9th Cir, 1942) (a Jones Net enn.

Soe Te 7 MMU RES UL Gao F194), :

In DeZon. supra. the Ninth Cireuit Count fat Appeals

citing Cortes) 4: Brhlimors lusulay Line.’ Jay: i sp eet YG

ee cc

CIB) wrote: Pe: are

° “** although the Jones Net has give rh Sah eckhis

of action to the seaman Who has suffered persinat

injury ae the “newhee nee vat bits etnapeleny r

(287 U.S. 872. 5B S41 UTA. TTL. Ed. 3680. <171

it does not make that meelgence Nihie bh Wats not nes

| ; pigs lige nee lye fore, does not make the employer a Vas Spon

ee sible for acts or things which to not constitute ae

SeerRogers r Missouri Dacifie RoCo.. 352 U.S. AOU L957

ae (an FELLA vase) and ferqusan rv. Moore MeCormack

Lines, 352 UL S..521 (1957), whieh made the decthines of

2 “°

, ee

DiZov-and Rogers applicable to Jones Net cases. See

also Mawleysr. Alaska Steamship Co. 236 KL 2d B07 (Oth

Cir. 1956). | < fa Me

In othe present case proot of negligence is wholly laek-

ine.

IV.

Chom of PROBABILITIES

ie e

“bividence whieh preseits no qore than a choice. of

probahilities p Rei, cleeniedd substi inti ul enough to warrant

~ibinission Ot it case ty the jury. Liability cannot he

predicated vipdn 4nere conjecture or speculation as to the

pon Hate erise of chapomee "Paytow Veneer & DL. Mills

. Cincinnati §0.& EP. Ra Ca, TORE, I 222,228

* oe D

(Oth € br. Po4vy and enses’ cited therein, Seo also Moe

sein, Topeha od Sautas Le Ry. Co, ~ Mamilton Bros. 192

M.S STE REE USA Itt wf mon ve. Souther Coal

Co. 52 1 Suppe sat, oo4 CW. DL Arkansis TOAD), si

e Sunisk, Coxskerurne AND SPECELATION

“His fundamental cylecef law that the Durden is upon

the one naserting nogheence to prove it by a preponder-

ance of the evidence. and such burden is not sustamed by

evidenee that is aurnfise, specuh ition or conjecture.” Mar--

heat iy. Rhy Coustruction Ca, ¥ Nealy, B44 i. od 482, - ‘485

(1Oth Cir, 19685). aff'd OSG “a S.OBLT (1867). rehearing

den, B86 US. 1027 (1967). and cases therein cited. | See

Walters 7. National Life ds Ahecident Tus. Co. 156 FL 2d

"470 (10th Cir, 1946): Uavted States we. Carroll, 212 1,

Supp. 422. 432 (W. D. Arkansas 4962): Penna, RL Co. vr,

Chamberlain, 288 U.S. 383. (1933), sae

1 he PT hiril Cire wit in Mali ? mae ee Bell Teli pihean (Com-

pany o} Peunsilrania, ed FL 2d 557 (8rd -C tr, 1067),

sti stil .

“He isaxiomatic that-in the tril of a ease like

this plaintiits |

ees ~ Hntist tnnatke it appear that it is more like. l\

than not that the condiet of the defendant was. a

ahout the tearm. A

Inere possibill Hv of csueh Sea Ulsation is not enough:

and when the matter remains one of pure specuta-

5 be _ tion and COMMOCLULOS 0 rethe probabilities are at best

a evenly habaneed, ee the duty of the court

to direct a verdiet for the defendant.’ (Restate

ment (Second), Torts (4338. Coniment a at 442

(1965). B87 "RL 2d alt 559, i /

substantial factor in brinwinre

The presentation of weeker and less satis: eLOTY testi

mony When higher evidence esuld have heen produeed in

itself mas awaken suspicion Vanity Kai, Paper Mills,

Inc. oe ETA oe CEL hE 480, 4Ry (2nd Cine 1962). o

No. inference could he drawn agaist the dete nls tits at

the trial ofthis case: correspondingly, no” prestimptions

raver plaintely- at triak As stated by the Seeond Cirenit,

Chase, C.J:

AD defendant. if so advised Inay well let. the

ease go to the jury on the weakness of the evidence

presented by al plaimift, Who has) the burden of

proof without heime eatled to task for failure to

call certain Withesses, or have any adverse infer

ence drawn whieh world not ollow From an entire

failure. tocrefute the evidence introdneed, In this

regard ao party who: introduces no evidence, and

has. Witnesses exclusively within its control stands

the same as a party who Introduces no evidence

and. has ne wifnesses.”. Robbins Dry Dock «. Navi-

yarione Libera. 3? Ro Pd POO, P1027] (2nd Cir.

LO, | Saag

IS.

Plaintiff argues that the cftire defense’ was “predicated

“tipon the theory’ that plaintiff's ‘accident was caused or?

contributed to by his intoxication.” (Plaintiffs brief, p.

) Plaintiff’ erroneously neglects to consider the basic

principle here that he is hound to show negligence upon

the part of defendant and that such negligence was the

proximate case of plaintiffs injury. This proof of neg-

ligence must be shown Par any consideration of eon-

tribiutory ‘newlience heeames relevant. And certainly i:

proof of: plaintifs freedom from contributery negligence

- does not’ itself establish defoardants” negligene’, See Cal-

wert vc, Naty Tari, lie. ef al.. decided June 26, LIGD, Bee-

one Cireuit — of Appeals, Docket No. o2Sso, pr 2593.

Vi.

Proximark Cayuse “as 4 QUesTION: OF Law

“Proximate enuse is ordinarily a question of fact for the

jury. but where the Pacts are, undisputed, it) becomes a

question of law for the Coutt” Martin We. Eby Construe-

ion Co. roNeely, DEF Bo 2d 484. 486. (10th: Cir, 1965),

ald B86 US. BAT C1967). rehearing den, BS6-0 S. 1027

(1907). ; ,

The eirenmstanees of the case my be stich as to gnake,

the question of negligence one of law for the court.

Vil.

Ris Tpsa Logurrur ay

The rule of ves ipsa loquitiur may be invoked only when,

ander the cirenmstances involved, direet evidence is ab-

cent and unavailable.. GEA, CL J. oS. Negligence S220.8,

hotes DS find’ GO, pp. 543, 544: Stiles vr. Gore; 345 F. 2d

401 (9th Cir. 1965): Gray ve Baltimore & 0. R. Co. 24 EE

KL OTL (7th. Cir, 1928): Dindo ev. Grand Union Co. 31

KE. 2d 138 (2nd Cir: 1nd): fhall 4 oN Votional Supply Cae

sae BY. 2d 37 (oth Cir Too),

The doctrine of res (psd loquilik is not applicable here,

} VIII.

Hoo ry \" 8

C Pa Absent Witnesses

Two witnesses, Darey and the Wiper. who inieht have

provided iinswers toomere speculative surmises. were not

whether they were. still canployved> or under. the. contre!

(of the defendants. Darey was ae friend of plaintiff’

(SM 7). Both Darey and the wiper apparently were

inion mehbers, ae ae

“Wigmore states that "The noneproduetion. of evidence

that would naturally. have heen produced hy an honest.

and therefore fearless claimant permits =the inference

that its tenor is unfavorable to the party's cause” 1 Wie