Before BIGGS, Chief Judge and McLAUGHLIN, KALODNER, STALEY, HASTIE, GANEY and SMITH, Circuit Judges.
The first trial in plaintiff's personal injury action under the Federal Employers' Liability Act,*fn1 resulted in a jury verdict of $11,750 in his favor. The trial judge granted a new trial which resulted in a jury verdict in the defendant's favor.
The instant appeal presented the critical issue as to whether reversible error was committed in granting a new trial; specifically, whether the trial judge abused his legal discretion in granting a new trial in that it was not "exercised in accordance with ascertainable legal standards" and was a usurpation of the function of the jury: Lind v. Schenley Industries, Inc., 278 F.2d 79 (3 Cir., 1960), cert. den. 364 U.S. 835, 81 S. Ct. 58, 5 L. Ed. 2d 60.
Plaintiff was employed by the defendant as a conductor on one of its passenger trains. He was injured when, in the course of his employment, he tried to close a railroad coach door which stuck because of a defective mechanism - a gripping device used to retain tension on the hand brake of the coach which is called a "dog". Plaintiff's complaint alleged that the defendant had failed to provide him with a safe place to work.
At the trial under review the existence of the defective mechanism was not disputed by the defendant. No evidence was adduced by the plaintiff as to when or how the defect came into being. The trial judge instructed the jury that the defendant could not be found negligent unless it knew or should have known of the defective condition of the mechanism prior to the happening of the accident. Under the circumstances stated the jury's verdict in favor of the plaintiff and against the defendant must be regarded as a factual finding that the defendant had constructive notice of the existence of the defective condition.
The trial judge set aside the jury's verdict because or his conclusion that the evidence failed to establish defendant's "knowledge" of the defective mechanism "nor anything from which such knowledge could be inferred" and that "in the absence of proof of either actual or constructive notice, plaintiff has failed to establish his case and a new trial must be granted."*fn2
We are of the opinion that the trial judge erred in not giving effect to the inference of negligence warranted by the res ispa loquitur situation in the instant case, and as a consequence he usurped the fact-finding function of the jury when he granted a new trial.
The inference of negligence permissible under the res ipsa loquitur doctrine was certainly sufficient "to justify with reason" the jury's finding that the defendant was negligent. Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S. Ct. 443, 1 L. Ed. 2d 493 (1957). The vitality of Rogers has just been reaffirmed - Basham v. Pennsylvania Railroad Co., 372 U.S. 699, 83 S. Ct. 965, 10 L. Ed. 2d 80 (1963).
That a res ipsa loquitur situation existed here was established by the undisputed evidence that the defendant had exclusive control of the railroad coach and its appurtenant mechanisms; that one of these mechanisms, "the dog", was defective and its condition was the precipitating cause of the accident which resulted in whatever injury was sustained by the plaintiff; that the accident was such as in the ordinary course of things would not have happened if the defendant had used proper care with respect to the "dog".
In Jesionowski v. Boston & Maine Railroad, 329 U.S. 452, 67 S. Ct. 401, 91 L. Ed. 416 (1947), where the Supreme Court, in specific terms, first made the doctrine of res ipsa loquitur, as stated in Sweeney v. Erving, 228 U.S. 233, 33 S. Ct. 416, 57 L. Ed. 815 (1913), applicable to Federal Employers' Liability Act cases, it was said at page 456 of 329 U.S., at page 403 of 67 S. Ct., 91 L. Ed. 416:
"In San Juan Light [& Transit] Co. v. Requena, 224 U.S. 89, 98-99 [32 S. Ct. 399, 56 L. Ed. 680], this Court said: 'when a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant's want of care.'" and at page 457 of 329 U.S., at page 404 of 67 S. Ct., 91 L. Ed. 416:
"A conceptualistic interpretation of res ipsa loquitur has never been used by this Court to reduce the jury's power to draw inferences from facts. Such an interpretation unduly narrows the doctrine as this Court has applied it.
"This Court said, in Sweeney v. Erving, 228 U.S. 233, 240 [33 S. Ct. 416, 57 L. Ed. 815] , a decision which cut through the mass of verbiage built up around the doctrine of res ipsa loquitur, that 'res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not ...