Robert Livingston Pomeroy, Estate of Elizabeth Eagan Pomeroy v. Pennsylvania Railroad, a Corporation , 223 F.2d 593 ( 1955 )

BAZELON, Circuit Judge.

Sixty-nine year old Mrs. Pomeroy and her husband were passengers on a Pennsylvania Railroad train en route from Trenton, New Jersey, to Washington, D. C. About five minutes before the train reached the station in Washington, she told her husband that she felt warm and was going to the vestibule of the car to get some air. She walked toward the rear of the car and was never again seen alive. Later, her body was found on the tracks about 2% miles from the station.

'Her executor brought this suit for wrongful death. The complaint alleged the ownership, operation and control of the train by the defendants; that it was their duty to exercise reasonable care to assure decedent’s safe transportation; and that they “disregarding their individual or joint duties * * * and negligently and carelessly neglecting the same, did fail to exercise such reasonable care * * * over the said train, so as to permit the deceased to fall or be thrown therefrom * * The answer denied these allegations and pleaded contributory negligence.

At the conclusion of the plaintiff’s opening statement, the defendant Pennsylvania Railroad moved for a directed verdict. The trial court granted the motion upon the stated ground that “the vestibule door [through which decedent is claimed to have fallen] was not under the exclusive control of the defendant railroad and there was no offer to prove that the factors outside defendant’s control did not bring about the accident * * The question before us, as formulated by the parties, is whether the jury might properly have inferred negligence on the part of the defendant from the facts that the decedent fell to her death from a moving train at a point where the track curved; that the vestibule door was open between stations; and that it was highly improbable that she could have opened it herself.¹ The appellant contends that the doctrine of res ipsa loquitur applies to these facts so that the jury may properly infer negligence in the absence of contrary proof by the defendant. The appellee, on the other hand, maintains that the doctrine is inapplicable to this state of facts.

The doctrine of res ipsa loquitur contains no absolute standards by which to determine its applicability to a given situation. “The phrase is nothing but a picturesque way of describing a balance of probability on a question of fact on which little evidence either way has been presented.”² The court is required to decide, in the light of common experience, whether “all the observed facts with the fair inferences from them”³ could justify a finding by the jury that the defendant was at fault. To attempt to decide that question without considering “all of the observed facts” assumes a heavier burden than logic demands. Yet that is what the trial court appears to have done and what we are asked to do.⁴

The opening statement here offered to establish more facts than are comprised within the question presented on appeal. The determination of the applicability of the doctrine ought, therefore, to have been postponed until the ascertainment of those additional facts. From the opening statement, this is not merely a case of an unexplained fall from a moving train. The plaintiff offered to prove that a brakeman had found the vestibule door open at approximately the point where decedent’s body was later found and that he had thought the circumstance of the door being open was not unusual. Plaintiff’s counsel added that “ * * * we will tell you more about that door later * * He offered to prove further that there was a curve in the track at about the point where the accident occurred, saying, “The amount of the curve I don’t know but it will be established on the witness stand by employees of the [railroad].” He concluded by asserting that the railroad was negligent in keeping the vestibule door open between stations.

Without expressing any opinion as to whether a jury could possibly infer negligence from the naked facts stated in the formulated question, we think it clear that the possibility of reasonable inference can more intelligently be judged after presentation of the offered proof about the circumstances of the accident. We do not read the opening statement as a mere assertion of liability to be inferred from the fact of an open vestibule door, but rather as an offer to prove, through the employees of the railroad, circumstances from which the jury can infer that the railroad negligently kept the door open, thereby causing the accident. To be sure, plaintiff’s counsel failed to spell out with any specificity what testimony he expected from the employees of the railroad. But an opening statement “is ordinarily intended to do no more than to inform the jury in a general way of the nature of the action and defense so that they may better be prepared to understand the evidence”; and, to direct a verdict upon an opening statement, “it must clearly appear, after resolving all doubts in plaintiff’s favor, that no cause of action exists.” ⁵

The trial court reached the question of the applicability of the doctrine of res ipsa loquitur after first determining that the alternative theory of specific negligence had been abandoned by the plaintiff’s counsel in the opening statement and an ensuing colloquy at the bench. We think that determination as well could profitably have been postponed until presentation of the plaintiff’s proof.⁶ 7Plaintiff’s counsel stated in the colloquy that he was not “contending” there was specific negligence, “unless it develops in the course of the trial,” and that he was “relying” on the doctrine of res ipsa loquitur⁷ Reading these words in context, we are not as ready as the trial court to conclude that a position taken in the complaint, reiterated at pre-trial,⁸ and reaffirmed in the opening statement to the jury, was intended to be “abandoned” for no apparent reason in the colloquy. In the very sentence in which he is asserted to have abandoned his claim of specific negligence, plaintiff’s counsel said, “ * * * unless it [specific negligence] develops in the course of the trial.” Counsel’s answer “I am,” which followed the court’s statement that counsel was “relying” not on specific negligence but on res ipsa loquitur, can fairly be read as limited by the same conditional clause.⁹ To bar appellant on this basis from establishing his theory of specific negligence would be to deny him the right to go to the jury with alternative causes of action, a right which has not been in doubt since the adoption of the Federal Rules of Civil Procedure.¹⁰ The residuum of ambiguity as to whether the theory of specific negligence was intended to be abandoned can effectively be resolved after the plaintiff has had an opportunity to examine the witnesses. If, after the plaintiff’s case is in, the motion for a directed verdict is renewed and the trial court finds there is no evidence of specific negligence, it is time enough to consider the substantive question of the applicability of the doctrine of res ipsa loquitur.

Reversed and remanded for a new trial.

1 . The trial court thought that the opening statement made “no disclaimer that the , door could have been opened * * * by the decedent herself,” but the appellee concedes that it is “highly improbable that tbe lady’s strength would have enabled her to open the door.”

2 . Thayer, Liability Without Fault, 29 Harv.L.Rev. 801, 807 (1916). See Washington Loan & Trust Co. v. Hickey, 1943, 78 U.S.App.D.C. 59, 61, 337 F.2d 677, 679.

3 . 3 Cooley on Torts (1932), p. 372, citing Washburn v. R. F. Owens Co., 252 Mass. 47, 147 N.E. 564.

4 . The situation is different where the opening statement clearly delimits the scope of the evidence to be expected. See, e. g., Greene v. Hathaway, 1951, 89 U.S.App.D.C. 229, 191 F.2d 656, 657, where we held that the evidence promised in the opening statement made a case for the plaintiff and we reversed a judgment entered upon a directed verdict in favor of the defendant. That was a ease of a child falling out of a taxicab. In the opening statement, plaintiff’s counsel said: “‘For no apparent reason the door of the cab, the left rear door, came open, and Ceieley, the child, was thrown out. * * * Our evidence will show that no person in that cab touched or did anything to that door which could normally be expected to cause it to open.’ ” Assuming those facts, wo had before us all of the observed or observable facts that were necessary for a determination of whether a jury could reasonably find negligence in the maintenance or operation of the vehicle.

5 . Best v. District of Columbia, 1934, 291 U.S. 411, 415-416, 54 S.Ct. 487, 489, 78 L.Ed. 882.

6 . Cf. Safeway Stores v. West, 86 U.S.App.D.C. 99, 180 F.2d 25, certiorari denied, 1950, 339 U.S. 952, 70 S.Ct. 840, 94 L.Ed. 1365, where, as here, the complaint was grounded upon specific negligence as well as res ipsa loquitur. In that case, after pre-trial, the specific negligence theory was “tacitly abandoned” and the case was rested on res ipsa loquitur, but the direction of the verdict occurred only after completion of the plaintiff’s case.

7 . The colloquy was as follows:

“The Court: You are relying on the doctrine of res ipsa loquitur?

“Mr. Smollar [Counsel for plaintiff]: Yes, I am.

“The Court: In other words, I don’t think Mr. Smollar is contending that there was any specific negligence, are you?

“Mr. Smollar: No, unless it develops in the course of the trial, Your Honor, but I am not contending that.

“The Court: I understand you to say that you are not relying on specific negligence but you are relying on the doctrine of res. ipsa loquitur.

“Mr. Smollar: Yes, I am.”

8 . The sufficiency of the allegation of negligence in the complaint was sustained by the trial court at the pre-trial hearing.

9 . See Anderson v. Missouri State Life Ins. Co., 6 Cir., 1934, 69 F.2d 794, 797: a * * * ^ jg axiomatic that in order to sustain a judgment upon a mere statement, admissions must clearly preclude recovery or defense, and broad and liberal interpretation must be made without too precise limitation of the meaning of specific words and phrases.”

10 . Fed.R.Civ.P. 8, 28 U.S.C.; McGhee v. United States, D.C.S.D.N.Y.1947, 75 F.Supp. 76, 83; see also Smith v. Pennsylvania Central Airlines Corp., D.C.D.C. 1948, 76 F.Supp. 940, 942; cf. Washington Loan & Trust Co. v. Hickey, 1943, 78 U.S.App.D.C. 59, 61, 137 F.2d 677, 679.