# Petition for Writ of Certiorari — Armstrong v. Commerce Tankers Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0144%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 400 U.S. 833 ## Text : a Supreme Court uf the United States | ; October: Terms, 1970: = (> ..- i ey 3 5 : tf - 8 . . 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. 4 nt Grorce J. ih NGELMAN, . Attorne Y for Plaintiff- ee dat. | T1 Broadway, New York N. Y. 10004 t 7) - 4 THE REPORTER CoMraANny, INc., New York, N. Y. 10007—212 73 6976-1970 » a * LAA™OQ\°. 6: me ote 4 *. e ‘ * t : 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 © «Order Extending Time —_ an Fe eet TOC NT ees | 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= . 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,” ee t. se 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, % ~ so x © * . . 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 * " \ : ° . ’ ‘s . 2 , ’ . ; " ‘* m4 - : ’ \ 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? . » - . . e “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- 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), e 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 + e , . s- or ey = s\ a eee PIES Ol Oe SMP, é . ’ . 3 : i ; Be Vad eeeatane . ee Z ; _ —- ‘ - AC re : fie eS | Sey ee 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 ee . —_—_—— wats el . xy 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 pe ‘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 . = e “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. ; ‘ ’ ‘* : ot 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 Thus, in itief. © have a stumble or atcloss ¢ I balance 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. 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 r > 19 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 called. © Nov explanations were) given by anyone tix to 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 more on videnee, p. 162 Vee Wigmore cites mimerous precedents: which Sustain this principle, (p. P62. fn), Atong these are the following: United States vr. ceo ed, S47 (TS80) (onassSton to call a witness who, as the evidence showed, was fully able to confirm testimeny of defendant): The Fred MM. Laurence, Th) Fed: 635 (ISS5) (faifnre to call a Seana on hoard at the time of 2) collision who knew wheter the Laurence wag the boat whieh’ did the damage): The Joseph B. Thomas. St Bed) 578 (1897) Cfailnre to. eall as witness employees: Whos as shown by other evidence, may probabky have committed an act. of neeligenee re- sultingy in the injury complained of), Wigmore further comments : “It is commonly said that no inference is allow- able where the person in question is equallg avail... able to both parties: particularly where he is: ae- ‘tually in court: though there seems to he no dis- 20 ete position iy uetept such oa limitation dicots or to enforce it strietly. Vet the more logical view is that the fathire to produce is apew to an inference - against both parties, the: particular streneth of the inference aeatinst either depending’ on the cireum- strnees. of footnotes omitted] Wigmore on Wevidence, Vol UH (3rd od). pp. 10-1 2 See onise epses cited by AWietiiore in note 4, Me 8 VieCormuek- eazaments as follows: ° - \ it seems that equality of faver is nearly abwiavs cde! tableSand that though the Judge thinks, the, Witness would be as likely to favor dire party as the other, he should permit: either: party to ar- enertie duferenes aeninet theoadversary. [footnote . cinitted | Atleast. it work appear in this supposed ense of teat favors i the witness's knowledge is Hireeted toward ao particular issue, that then the wreument should be available aginst. the party who dias: the burden i eer pr that Issie. ~ 9 MeCormiuek on dovidenee, py. aed Consequenthy. it world: be fair 10, state that-at least at . the the of trial the jury would have been entitled to Grawonn inference neainst: the plaintiff die te plaintiff's fatiirce to eatl Darev or the wiper, sinew plaintiff had the burden of prod as to defendants’ negligence, Ilow-- ever it is necessary at the present time to draw all in- revences in favor of the pliintiif. for purposes of deter minine defendant's (notion for jiudement NLOW: Never- theless. no dbference in this regard may he drawn. against. the defendants at Senet tine. IN. Direxpaxts’ Motion cro Stier Astpe Daataces. ViRpicr vs JUNCESSIVE apis 7 Defendants claim that) the verdict of $4,000. for’ past loss of Wagwes (Item 3fb]) is ineomeastent with the ape ee - eo oF no damages {1 Spee lal Verdiet to be based Ippo Future Work at- that. there bore, hetween AM JUEY Conyinetie ane: to the dranagwe y 21 mr future: doss of Wages (Item i Jal). “See attached hereto. This contention. seems nthe theory that, UD pladatutt cers. ie the his trivde” or “at “other: labor without loss. he eguld have’ dotie so cin the period tnd trial llowever, this areuiment-is not: I. therefore, deny defendants notion gs cordiet, , CONCLUSION -~ Defendants” tn Therefore, the I Accordingly. bE find that plaintilt his not proved. negli. enee on the part ist the delet tty This to he So faking every fafereénee in favor of the plaintitt, Otion Tor jndeme mt NO. VI ois v'ranted: ry dete Tininations both: as te negheenee ae as to damages are set aside as contrary to) the clear weight “« Ix directed to present Case, > Defendants’ tia for CXCOS Sie li tl! Withdrawn. Hlowever, Todi of the evidenee and the (Jerk of the Court enter judgement for defendants on the otion to set aside the verdict ofethe JPN Haves is de ped Plaintiff's motion to se easide the verdiet of, the iyiey for inaidequate humages 3 reet entry. of judement. for phaintit pur stant to stipulation of counsel Ir the ainotunt of sa00 ins sities tf: ition LOL CULE, - Podlineet taxnet Favor of delcineds roe P * the eleimy for WALES, Hiaintenance stnied lon oof Costs and judgment for. costs in ints On the Jones. Net CUse, LloWever, | direct that no costs he faxed or entered in faver of erther party on "SINCE COsts avere counsel, So corderech. Dated: Neay yuark, i. ¥ oe ‘ | x Tilw' the wages. maintenance ‘and CUP cease” not contemplated by the stipulation of 1. 1969, ° RICUARD TH. LEV ET 7 United States District Judee 22 Opinion of the United States Court of Appeals for the | ? Second Circuit. — : | UNITED STATES COURT: OF APPEALS ° aor eee Fon dae Secoaxp Cirecre . No. d95--September Term, 1969, (Argued February 25. 1970 - Decided “March 20, 1970.) Docket No. BBS ee . + 4 ‘4 rer iui a PQ NEST OVO CYRATS TRON GS Plaintiff Appellant, _ fag Couvence Tankers Corp. and Farpinn Sup AGENTS & Brokers Core., ; awe 5 atl ~ Deltendauts A ppellees. c problems. The court fully charged on the matter of in- toxiention and its relationship to contributory negligence. The. jury is peethcallys found there was none. ° This appears to have heen the principal point of conflict in the trial court: and the interrogation relative to the persons and circumstances just prior. to and subsequent to the: fractur- ing of Armstrong’s left thumb are, particularly from: the purview of a reviewing cotirt. unclear and uns; fisfactory. No plan or drawing ‘showing ¢ ther the size and xhape of . ‘Darey’s qui rte sor the loeation of the door aunt the fur \ \ . Rsk ; \ q . , . : ° ee g aa teun Taba er Hider Hlon. Robert P. Anderson. C irenite Judge. Hon. Thomas. F. Croake, District Indge . ; ) é By cde . 4 Oe asxesr NL Arustroxa. ; i oe : : Plaiitifj App ity f 7 Com Merce T \WWkERS Corps and FE rpine Ste Nei srs —& Brokers Corrs, ; Dy Ie nilawds bpp Thee s 7 . "» ——s4 ________ _ Appeal from the United States Distriet Court. for the Southern District of New York. This cause came on to be heard on fhe transe rips or record from the United States District Court for the Southern District of New York. ‘and Was argued hy’ coun sel, . ‘ . : "28 é. CoxsipervrioS, Witbrkor., it is now hereby ordered, adjudged, sand) decreed that. the judgment of said Dis- otret Court be and it hereby is affirmed: with costs to be taxetl against the appellant. 3 . oe |,’ AL DANIEL FUSARO, ais : a, Clerk’ AL trie copy. AX. DANIEL FUS SRO * Clerk . (Sealy - — ee “ ; 6” e e Po >: aa Order Extending Time. SUPREME COURT OF TIE UNITED STATIS AO? SFP eeR ae October Term, Lagu bss ene ee ee ernest cA, ARMSTRONG, Petitioner, COMMERCE Tanters Corp. nd de \IPIRE, Siup AGENTS & Bronce ks Corp, OT ce een cine — be) the application of counsel lor ee / Veex Coxsipenvriox of petitioner, . : Ne me aoe Ir Is Orperen that the time for filing a petition for writ Nod COTLOPaE In the ahove-entitled cause be, and the same , Is hereby, extended te and inelnding August W7th. oro. Deiter! this 7th day of Mai. L970, s “JOTIN’ a. HARE AN Associate Justice of the- Suprenie (' OHrt, Of the United States * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0144%3A1. Public record. Not legal advice.