859 F2d 154 Tappero v. Southern Pacific Transportation Company

859 F.2d 154

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Jerry E. TAPPERO; Ray Armistead, Plaintiffs-Appellants,
v.
SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant-Appellee.

Nos. 86-2945, 86-2946.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 10, 1988.
Decided Sept. 16, 1988.

Before EUGENE A. WRIGHT and POOLE, Circuit Judges, and RUDI M. BREWSTER, District Judge.*

MEMORANDUM**

Plaintiffs-appellants Jerry E. Tappero and Ray D. Armistead (plaintiffs) appeal from the order of the district court granting a new trial to defendant-appellee Southern Pacific Transportation Company (defendant) following a jury verdict in their favor in this action for personal injuries under the Federal Employers Liability Act (FELA), 45 U.S.C. Secs. 51-60 (1986). They also appeal from the adverse judgment entered on a jury verdict in the second trial, claiming error in jury instructions and evidentiary rulings. We reverse the district court's grant of a new trial, vacate the judgment entered in favor of defendant, and remand for reinstatement of the verdict and further proceedings. We find it unnecessary to consider plaintiffs' claims of error regarding the second trial.

Plaintiffs, employees of defendant, were injured at work on May 14, 1982 when they were thrown violently from their seats in defendant's caboose during a derailment. The accident was caused by a broken rail on defendant's mainline track at the "Olga Switch." The break apparently occurred within one hour of the accident and developed from a defect which was manufactured into the rail in 1956.

Plaintiffs' FELA complaint alleged defendant had caused their injuries by negligently exposing them to an unsafe work place. Specifically, they alleged, inter alia, that defendant had inadequately maintained and inspected the rail. In the liability phase of a bifurcated trial, the jury returned a verdict in their favor, but the district court granted defendant's motion for a new trial, ruling that the verdict was against the great weight of the evidence. Plaintiffs' request for certification for interlocutory appeal was denied. At the second trial, the jury found for defendant and judgment was entered on the verdict. Plaintiffs timely appealed.

We review the grant of a motion for a new trial for an abuse of discretion. When the decision is based on the insufficiency of the evidence to support the verdict, the court abuses its discretion if the verdict is not against the "great weight" of the evidence or if it is not "quite clear" that the verdict was "seriously erroneous." Venegas v. Wagner, 831 F.2d 1514, 1519 (9th Cir.1987). However, in FELA cases the district court's discretion is further circumscribed. Here the verdict must be honored "unless there is a complete absence of probative facts to support the jury's conclusion" because in these cases "the jury's power to engage in inferences is significantly broader than in common law negligence actions." Pierce v. Southern Pac. Transp. Co., 823 F.2d 1366, 1370 (9th Cir.1987). Only "slight" or "minimal" evidence is required to raise a jury question of negligence in an FELA case. Mendoza v. Southern Pac. Transp. Co., 733 F.2d 631, 632 (9th Cir.1984). " '[I]t is only necessary that the jury's conclusion be one which is not outside the possibility of reason on the facts and circumstances shown.' " Id. at 633 (quoting Chicago, Rock Island & Pac. R. Co. v. Melcher, 333 F.2d 996, 999 (8th Cir.1964)).

An examination of the record convinces us that the district court usurped the broad function of the jury by setting aside its verdict. Plaintiffs adduced testimony sufficient to support the conclusion that defendant negligently failed to furnish plaintiffs a reasonably safe place to work by failing to exercise due care in its inspection of the rail. It is undisputed that defendant inspected for internal defects twice yearly and that the last scheduled inspection was in January 1982, approximately five months prior to the accident. Martin J. Karlovic, defendant's engineer responsible for setting inspection intervals, testified that defendant's inspection equipment was capable of detecting any internal defect larger than "atom-sized." Verle E. Kahle, defendant's metallurgical expert, testified that the broken rail sported a substantial transverse detail fracture (19% to 25% of the head of the rail, featuring both horizontal and vertical components) at the time of the derailment, and that this defect may have been detectable in January 1982.1 He further testified that the vertical component of the fracture was a fatigue crack which grows slowly and could have taken between one and five years to fully develop, and may have taken six months to grow from 10% to 19%. Exercising the expanded power to draw inferences commanded by the FELA, the jury could reasonably find that the defect was substantial in January 1982 and that defendant's failure to detect it with equipment capable of detecting minute defects was probably the result of defendant's negligence. We cannot say that the jury's conclusion was outside the possibility of reason on this evidence; the district court was therefore without power to set the verdict aside.

We also find merit in plaintiffs' contention that the doctrine of res ipsa loquitur supports the verdict as a matter of law. Whether the permissive inference of negligence supplied by that doctrine applies on a given set of facts is a question of law reviewed de novo. Ashland v. Ling-Temco-Vought, Inc., 711 F.2d 1431, 1437 (9th Cir.1983). Under the doctrine, proof that a particular accident occurred permits a jury to draw an inference of negligence where the evidence establishes that the injury producing event was (1) of a type that ordinarily does not occur in the absence of negligence, (2) caused by an agency or instrumentality within the defendant's control, and (3) not due to any voluntary action or contribution on the part of the plaintiff. Id.

Here it is undisputed that the second and third prongs of the Ashland test are satisfied. The first prong is controlled by the Supreme Court's decision in Jesionowski v. Boston & Maine R. Co., 329 U.S. 452 (1947). There the Supreme Court held that "[d]erailments are extraordinary, not usual happenings. When they do occur, a jury may fairly find that they occurred as a result of negligence." Id. at 458. Defendant argues, however, that the doctrine cannot apply where, as here, the cause of the accident is known. It reasons that because the parties agree that the injury producing event was the derailment, and that it was caused by an internal defect in the head of the rail, plaintiffs are foreclosed from relying on the res ipsa inference.

We disagree. In Jesionowski the Supreme Court cautioned courts against taking a "conceptualistic" approach to the res ipsa inference. See 329 U.S. at 458; see also Barboza v. Texaco, Inc., 434 F.2d 121, 124 (1st Cir.1970). We have held that res ipsa may apply when the evidence as to fault or causation "admits of gaps." Olsen v. States Line, 378 F.2d 217, 220 (9th Cir.1967). It is the defendant's fault in failing to discover and remedy the defect which is in dispute; it is at this point that the doctrine of res ipsa loquitur operates to fill the gap in the evidence, if any. Id. See also Fassbinder v. Pennsylvania R.R. Co., 322 F.2d 859 (3d Cir.1963) (res ipsa applicable where the only question was defendant's fault in failing to discover and remedy the defect which caused plaintiff's injury). We conclude that the doctrine of res ipsa loquitur applies on these facts and raised an inference of negligence sufficient to support the verdict under the liberal standards of the FELA.2 It follows that the district court exceeded its authority in setting aside that verdict.

We conclude that the verdict in favor of plaintiffs, viewed under the liberal standards mandated by the FELA, was sufficiently supported by the evidence and by the inference of negligence arising out of the unusual nature of the accident itself. The district court therefore abused its discretion in ordering a new trial. Accordingly, we reverse the order granting a new trial and remand to the district court with directions to reinstate the verdict returned by the jury after the first trial and proceed to the damages portion of the trial. The judgment entered for defendant after the second trial is vacated.

REVERSED, REMANDED, and VACATED.

*

The Honorable Rudi M. Brewster, District Judge, United States District Court for the Southern District of California, sitting by designation

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit Rule 36-3

1

Thus Kahle's testimony, and that of defendant's inspectors, contradicted Karlovic's testimony that defendant's equipment was capable of detecting any but the most minute defect

2

We find it unnecessary to consider defendant's contention that plaintiffs are barred from relying on the res ipsa inference because they failed to preserve their objection to the district court's failure to instruct on that theory. The question before us is not whether it was error to refuse the instruction, but whether the verdict was supported by the evidence. Res ipsa constitutes circumstantial evidence of negligence which arises from the fact of the accident and sufficiently supports the verdict notwithstanding the absence of an instruction. See Fassbinder, 322 F.2d 859