Before MARIS and KALODNER, Circuit Judges, and WORTENDYKE, District Judge.
This is an appeal by the plaintiff from a judgment entered on a verdict in favor of the defendant in an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. to recover for injuries suffered by the plaintiff while working as a track laborer for the defendant railroad. The plaintiff asserts that the trial judge erred in certain trial rulings and instructions to the jury. All the matters complained of were fully considered by the district court in an elaborate opinion by Judge Van Dusen denying the plaintiff's motion for a new trial. D.C., 140 F.Supp. 136. Finding ourselves in full accord with what is there said we conclude that the judgment should be affirmed. To what Judge Van Dusen has said we need add merely a few comments with respect to three of the objections raised to the trial judge's charge.
The plaintiff was injured on November 27, 1950 while working as a member of a railroad section gang at Scott's Lane crossing in the East Falls section of Philadelphia. That morning her task was to carry dirt in a shovel from a pile by the side of Scott's Lane below the crossing to fill in holes under the rails of the tracks in the crossing. She had been engaged in this work for about an hour when on crossing Scott's Lane with an empty shovel returning from the tracks toward the pile of dirt she fell and broke her ankle. It was for this injury that she sought to recover damages in the suit before us.
At the time of the trial the plaintiff was a widow 55 years of age. She testified that she had raised two children, not her own, both of whom were then grown and no longer living with her. In his closing argument to the jury, counsel for the plaintiff laid much stress on this fact, appealing for a verdict which would enable her to be "'a mother to little children that needed it'" and to make it possible for her to leave something "'to those who are near and dear to her'".*fn1 To neutralize any possible prejudice resulting from this appeal on behalf of nonexistent "little children" the trial judge felt it was his duty, as he states in his opinion,*fn2 to charge the jury as follows:
"'If you are sympathetic or prejudiced in favor of or against either the plaintiff or the defendant, you should not allow such sympathy or prejudice to influence you at all in your verdict. You should no more be swayed by sympathy for the plaintiff than for the widows and orphans who may be receiving dividends or interest from the defendant company and who may need that income for themselves and for their families. No sympathy of any sort for either side should play any part in your decision.'"
While this language is perhaps not what this court would have chosen we cannot hold that it was error for the trial judge so to charge under the circumstances. He was not, as the plaintiff argues, bringing into the case for the jury's consideration additional parties who had no place there, as was done in the cases which the plaintiff cites. On the contrary he was obviously seeking to eliminate all such extraneous parties on both sides from the jury's consideration and in this graphic way to make it clear to them that no sympathy of any sort for either side should play any part in their decision. A federal trial judge has the right, indeed the duty, to do this.*fn3 And he has a wide discretion as to the manner of doing it.
We must assume that jurors are intelligent and conscientious individuals, each with a background of knowledge and experience. They are not robots who come to the courthouse with minds tabula rasa and who respond mechanically to every impression they receive in the courtroom. On the contrary they are expected, as by explicit direction of the trial judge this jury were, to use their common sense and their experience in the affairs of life in evaluating the testimony and reaching a verdict.It would be naive to assume that a group of intelligent jurors did not know, what is common knowledge, that a large railroad corporation such as the defendant here is very likely to have among its stockholders widows and orphans who receive income from its dividends. To thus point out that sympathy might enter into the picture on the defendant's side as well as the sympathy for which the plaintiff's counsel had appealed, and to direct that all considerations of sympathy on either side be left wholly out of their deliberations was in our view within the discretionary power of the trial judge in this case.
Another matter calling for additional comment relates to the charge of the trial judge with respect to the plaintiff's burden of proof. In this connection the trial judge said to the jury:
"The plaintiff has the burden of proving to you by the weight or the fair preponderance of the evidence that the defendant or its employees, other than the plaintiff, did not provide her with a reasonably safe place to work and that this negligence caused, in whole or in part, this injury to plaintiff. If, after considering all the evidence, the question of whether or not the defendant or its employees, other than the plaintiff, of course, were negligent in failing to use reasonable care to provide plaintiff with a safe place to work is so evenly balanced in your mind that you have no conviction, then you must find for the defendant. It is her burden to convince you that there was this negligence, Also, if the question of whether or not such negligence was a factor in causing the injury is so evenly balanced in your mind that you have no conviction, then you must find for the defendant.
"Now, this is one of the big points for you, this question of whether the plaintiff has proved to you by a preponderance of the evidence that there was a failure to use reasonable care under all these circumstances. There she was with her galoshes, her overalls, her work jacket. The evidence must do more than raise a doubt in your mind on these points, if plaintiff is to sustain the burden. If there is just a doubt in your mind, you must bring in a verdict for the defendant, and that ends your consideration of the case. You don't need to go any further. On the other hand, if you are convinced by the preponderance of the evidence that the defendant or its employees, other than the plaintiff, were negligent, and that this negligence was a factor in causing the injury, then you must find for the plaintiff.
"If you find for the plaintiff for the reasons stated above, then you must consider the damages. The mere fact that I instruct you on the subject of damages must not be considered as an indication of my views on whether or not the plaintiff has sustained her burden of proving that the defendant or its employees were negligent in failing to provide her with a safe place to work. If you find that the plaintiff sustained the burden of proving the defendant negligent, through its failure to use reasonable care in providing a safe place to work, then you must carefully consider all the following elements of damage: First, loss of past earnings; second, loss of future earnings; third, pain, suffering, injuries, mental and physical; fourth, medical expenses, past and future.
"* * * I must point out to you the various possibilities in accordance with the contentions of counsel, and it is for you to find the facts, and nothing I said should be allowed to make you feel that the plaintiff had not sustained her burden of proving this case or that she had.That is for you to decide. That is your problem. All I can tell you is the law, which is that the defendant has the duty to use reasonable care and to provide this plaintiff with a reasonably safe place to work under all the circumstances."
The plaintiff objects to these instructions upon three grounds. One is that it was error, as she argues, for the trial judge to use the words "conviction" and "convince" in explaining to the jury the nature of their fact finding duty in this civil case. Another is that it was equally erroneous to use the word "doubt" for that purpose. The third is that it was error in the two portions of the charge last quoted not to add to each reference to the plaintiff's burden of proof the statement that the proof need only be made by a preponderance of the evidence. We are satisfied that there is no merit in the plaintiff's contentions in this regard and that the portions of the charge which we have quoted, considered as a whole, adequately informed the jury as to their legal duty in the case. The problem involved in the first two contentions, however, calls for a little more searching analysis than in customarily given to it. For we are here dealing with ancient legal phrases, cliches which may have precise meaning for judges and lawyers but which must be far less than clear to lay jurors.*fn4 It is, however, with the success of these statements in illuminating the minds of jurors as to their fact finding duty that we must be concerned.
The classical statement of the burden of proof in an ordinary civil case such as this is that the facts must be proved by a "preponderance of the evidence". But there are obvious difficulties with this metaphorical description of the plaintiff's burden of persuasion. It does not refer directly to the fact finding process itself but merely to the character of the evidence required and even there is less than clear since it refers only to the "weight" of the evidence. The latter ambiguity is perhaps cleared up by the usual statement to the effect that "preponderance" is not dependent upon the number of witnesses testifying on either side but rather upon the credibility which, in the light of all the evidence in the case, the jury attributes to their testimony and the effect of that testimony in inducing belief in its truth. But even so, it has been suggested with much force that the use of this ancient metaphor referring, as it does, to the "greater weight" of evidence is intrinsically of very limited usefulness in giving to a juror real guidance as to his duty.*fn5 One cannot weigh evidence as on a scale. Certainly no mechanical device is available to jurors to measure the truthfulness of a witness or the accuracy of his memory.
Moreover, as we have suggested, the "preponderance of the evidence" formulation is not directed to the basic procedural problem confronting the jury, that is, the degree of accuracy in finding the facts which they are being asked to employ in reaching their verdict in a civil case. Certainly they are not required to find the facts to an absolute certainty or even beyond a reasonable doubt, as in a criminal case. But we do not think it is wrong to say, as the trial judge in this case did, that the jury must be convinced by the fair preponderance of the evidence that the facts were as the plaintiff asserted them to be.
It would doubtless be much more comprehensible to a jury if they were told, as Professor McBaine has suggested in his thoughtful essay on the subject,*fn6 that the plaintiff's burden is to convince them upon all the evidence before them that the facts asserted by the plaintiff are more probably true than false.*fn7 This, we think, is the intended effect of the "preponderance of the evidence" rule and it would place the emphasis upon the nature of the function which the jurors are being asked to perform and the degree of belief which must be produced in their minds before the plaintiff is entitled to a favorable finding from them.
In any event there must surely be a conviction in the minds of the jurors before they may bring in a verdict for the plaintiff. They must be convinced or satisfied*fn8 in their minds that the plaintiff is entitled to their verdict. This, of course, need not be a conviction of the certainty of the facts they find,*fn9 but they must at least be convinced that the evidence considered as a whole, its "preponderance" to use the traditional term, indicates that the facts asserted by the plaintiff are probably true. The contrast here is between two different states of mind, a state of belief and a state of doubt or uncertainty. If, as the trial judge suggested in his charge in this case, the evidence merely raises a doubt in the jurors' minds as to whether or not the facts asserted by the plaintiff are true or if in their minds the probabilities of those facts being true or false appear equal the plaintiff has not met his burden of proof and a finding for the plaintiff would be inconsistent with the jurors' duty to render a true verdict.
We are satisfied that in the portions of the charge to which the plaintiff objects and which we have quoted above the trial judge adequately explained to the jury their duty in this regard. We are not impressed with the plaintiff's contention that the trial judge should have included a specific reference to the preponderance rule or its equivalent in connection with each of the references which he made later in his charge to the plaintiff's burden of proof. He had already adequately, as we have pointed out, instructed the jury as to their ...