Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
McLAUGHLIN, Circuit Judge.
In this Federal Employers' Liability action the single point on appeal is whether the trial court erred in denying plaintiff's request to charge res ipsaloquitur.
Plaintiff, employed as a freight conductor by the railroad defendant, while walking from the Wilkinsburg, Pennsylvania, yard office of the defendant across its property towards his train, stepped into a space between intervening railroad tracks. As he did the ground beneath him suddenly gave way and he fell into a circular hole about three feet in diameter and from five to six feet deep. He sustained personal injuries and thereafter sued his employer under the Act, 45 U.S.C.A. § 51 et seq.
Without detailing them at length here, the facts embraced within them a res ipsa loquitur situation. The complaint as drawn would permit that sort of proof. That the facts pointed to the occurrence warranting an inference of negligence was indicated at the pre-trial conference when, after plaintiff's counsel had said that, in addition to the factual witnesses, he would produce an engineer on the subject of drainage, the pre-trial judge queried, "Do you have to do that, if the ground gave way? However, it is up to you. The ground isn't supposed to give way under a man." Plaintiff's counsel answered, "Maybe I should show the reason." The judge replied, "O.K. You are going to have witnesses. All right * * *."
Plaintiff's points for charge were given the court the evening before summations and charge. The next morning the judge went over these with counsel. The sixth point read [166 F.Supp. 845]:
"6. The jury is instructed that if they find that the management and control of the defendant railroad yard was exclusively in the control of the defendant and/or its agents, servants or employees, and that the collapse of the track bed or ground was the cause of the plaintiff's injuries, then it is incumbent upon the defendant to come forward with evidence to explain the cause of such collapse and that the defendant exercised due care on its part in providing plaintiff with a safe place in which to work. (Eckman v. Bethlehem Steel Co., 387 Pa. 437, at [pages] 439 and 440 [128 A.2d 70].)"
As to this point defense counsel said:
"Now the sixth point, Your Honor, I don't agree with it as stated. I think what he is trying to say is the rule of the exclusive control, where you have a situation where the instrumentality is in the exclusive control and the accident is such as in the ordinary course of things does not happen, if the management used proper care. It affords reasonable evidence, in the absence of explanation, that the thing came about through negligence. Now, that is not what the point says - "
The court ruled: "I refuse point 6 as written, and note an exception to the plaintiff ." (Emphasis supplied.)
Pausing here, it seems to us that while the point could have been more artistically drawn it adequately presented the res ipsa doctrine for the purposes of the particular trial. It is substantially founded on the Eckman decision of the Pennsylvania Supreme Court which followed Mack v. Reading Company, 1954, 377 Pa. 135, 103 A.2d 749, 41 A.L.R.2d 927 in holding "* * * that the exclusive control doctrine is to be applied only where evidence as to cause is peculiarly or exclusively in the possession of the defendant and not equally available to both parties. The doctrine is purely a rule of evidence determining whose task it is to produce evidence, or, as Professor Wigmore has phrased it, 'who has the risk of non-persuasion': Dillon v. William S. Scull Co., 164 Pa.Super. 365, 64 A.2d 525. '"Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."' Mack v. Reading Company, supra, 377 Pa. at page 139, 103 A.2d at page 751." [387 Pa. 437, 128 A.2d 72]
The federal doctrine of res ipsa loquitur is the same and the request was generally in accord with it. Sweeney v. Erving, 1913, 228 U.S. 233, 240, 33 S. Ct. 416, 57 L. Ed. 815; Sweeting v. Pennsylvania R. Co., 3 Cir., 1944, 142 F.2d 611.
The opinion of the trial judge on plaintiff's motion for a new trial tends to confirm the fundamental rightness of the point. The court there abandons any suggestion that it was improperly stated and puts the refusal to charge it solely and squarely on the ground that this was a case
"* * * where the plaintiff elects not to rest on the doctrine alone but pleads and proves specific acts of negligence and the defendant offers ...