Clairon Vern Gibson v. Elgin, Joliet & Eastern Railway Company

GRUBB, District Judge.

This is an action under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for personal injuries. Plaintiff was employed by the defendant as a timekeeper. His duties, in addition to keeping time, included checking crews, signing up new employees and making out accident reports. He and George Marjanian, another timekeeper, worked in a building near the Kirk Yard. The interior of this building had a bare wooden floor. About the exterior of the building there were cinders. At one time there had been a floor mat or foot scraper at the entrance to the building. The scraper broke off and was never replaced. At the time of the accident there was no door mat at the entrance. Plaintiff worked at a desk, around which, from time to time, applicants for employment and employees came on business. These men brought in dirt, cinders, pebbles, and grease making the floor dirty and slippery.

On the evening of December 12, 1951, plaintiff and Marjanian were working overtime to get out a payroll. Marjanian asked plaintiff to put an adding machine, which Marjanian had borrowed, under plaintiff’s desk to avoid its being damaged by truck drivers in the morning. Plaintiff had done this on other occasions. Plaintiff in putting the adding machine under his desk, struck his head against the edge of the desk.

Plaintiff’s testimony was, “it must have been as I was backing out, because I had a terrific bump on my head, and I must have slipped.” The motion to strike this as speculative was overruled. Plaintiff continued, “I lost my balance somehow and bumped my head on the edge of the drawer as I was getting out from under the desk. As I was getting out, I say I don’t know whether I lost my balance, or not.”

Marjanian testified that he heard a noise, looked over and saw plaintiff holding his head. He asked plaintiff what had happened. Plaintiff didn’t say anything for about two minutes; then he told Marjanian to take his key and start his car, which Marjanian did. Marjanian came back in and plaintiff “started to tell me that he slipped under his desk and hit his head under his desk; he told me he slipped on some cinders or pebbles ; I couldn’t tell you exactly what he said at that time.”

When being cross-examined with reference to the testimony given on his denosition to the effect that he had shoved the adding machine under the desk, and when he backed out, he didn’t back out far enough, and when he lifted up, he cracked his head on the top of the desk drawer, plaintiff testified, “all I do know and do remember is that in backing out in that stooped position my one foot must have slipped, and, catching myself, I must have straightened up, and then I banged my head. * * *” He was unable to tell which foot slipped or what it slipped on. “I don’t remember what it slipped on, other than just grime on the floor or maybe grease.”

Plaintiff’s wife testified that on arriving home that night, plaintiff’s trousers, around the cuff and leg “there seemed to be a grease or something at least foreign there to what his clothes normally were.” She continued to testify that there was a greasy streak down the front of his leg, probably the left leg and that it looked like a streak of grease.

Sometime later, plaintiff commenced to have symptoms. Ultimately the diagnosis of chronic subdural hydroma associated with cerebral atrophy was made.

Defendant made a motion for a directed verdict. The court reserved its ruling but submitted the case to the jury which returned the verdict in favor of the plaintiff. Thereafter, defendant’s motion for judgment, notwithstanding the verdict, was granted. The Trial Court stated:

“While the evidence, as showed (sic) by this testimony, is that the floor of Building 100 was dirty on the evening in question and that frequently there were quantities of cinders, pebbles, grease and tar on the floor, there is no direct competent evidence that there was any such foreign substance under or in front of the desk where the plaintiff says he received his injury. At best it can only be inferred.”

He pointed out that plaintiff testified that “he must have slipped.”

The Trial Court further stated:

“To find that the plaintiff injured his head by slipping because of a foreign substance on the floor, we must infer, first, that there was such a substance at the place where the plaintiff was bending unde].* the desk and, second, that he actually slipped because of such condition. Thus, the finding, essential for the support of the verdict, is based upon one inference which rests in turn upon another inference.”

The Trial Court added that it was unnecessary to pass upon the additional ground urged that the evidence was insufficient to show that the condition of the floor was due to defendant’s negligence. “I will say, however, that I think the question would be serious (sic) one if it were reached.”

Marjanian’s testimony as to what the plaintiff told him was undoubtedly hearsay but it was not objected to and no motion to strike was made. The court is of the opinion that no basis was laid for the receipt of that testimony as res gestae. However, the rule with reference to hearsay testimony received without objection is that it is to be considered and given its natural probative effect.

In Wigmore on Evidence, Sec. 18, the author quotes from Diaz v. United States, 1911, 223 U.S. 442, 450, 32 S.Ct. 250, 56 L.Ed. 500:

“So, of the fact that it was hearsay, it suffices to observe that when evidence of that character is admitted without objection, it is fo be considered and given its natural probative effect as if it were in law admissible.”

Spiller v. Atchison, T. & S. F. Ry. Co., 1919, 253 U.S. 117, 131, 40 S.Ct. 466, 64 L.Ed. 810; The Sac and Fox Indians, 1910, 220 U.S. 481, 31 S.Ct. 473, 55 L.Ed. 552.

Wigmore further adds that failure to make an objection is an implied waiver; that once admitted, the evidence is in the case for what it is worth.

“Hearsay evidence admitted without objection may be regarded as sufficient to establish a fact in controversy.”

20 Am.Jur., Evidence, Sec. 1185.

“* * * hearsay evidence, in the absence of objections to its admission, was properly considered by the jury, * * * that the weight to be given to such testimony in view of the attempt made to discredit it was also a question for the jury, * * * and that it should not be disregarded by the Court on this review, * *

Byars v. United States, 6 Cir., 1956, 238 F.2d 82, 83.

Plaintiff’s conclusion as to what “must” have happened, that he “must have slipped”, is, no doubt, speculation. However, with reference to speculation in F.E.L.A. cases, the United States Supreme Court stated :

“It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference.”

Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916, cited with approval in Webb v. Illinois Central R. Co., 352 U.S. 512, 515, 77 S.Ct. 451, 1 L.Ed.2d 503 (Footnote).

In Rogers v. Missouri Pacific R. Co., 352 U.S. 500, at page 506, 77 S.Ct. 443, at page 448, 1 L.Ed.2d 493, the court stated:

“Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.”

And, 352 U.S. at page 508, 77 S.Ct. at page 449:

“The burden of the employee is met, and the obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference.”

In Webb v. Illinois Central R. Co., supra, the court added, 352 U.S. at page 516, 77 S.Ct. at page 454:

“ ‘* * * It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence * * *.’ ”

A similar position is taken by the majority of the court in Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511. The dissenting opinion by Mr. Justice Frankfurter and the statistics and material there set forth indicate the attitude of the court in F.E.L.A. cases. Mr. Justice Harlan in his dissenting opinion in that case, states 352 U.S. at page 564, 77 S.Ct. at page 480:

“* * * And it has always been the function of the court to see to it that jury verdicts stay within that boundary, that they be arrived at by reason and not by will or sheer speculation. Neither the Seventh Amendment nor the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. lifted that duty from the courts. However, in judging these cases, the Court appears to me to have departed from these long-established standards, for, as I read these opinions, the implication seems to be that the question, at least as to the element of causation, is not whether the evidence is sufficient to convince a reasoning man, but whether there is any scintilla of evidence at all to justify the jury verdicts * *

It will be seen from these three cases decided in 1957 that the majority of the United States Supreme Court now take the position that jury verdicts under the F.E.L.A. can be permitted to stand even though based solely on speculation.

We agree with the District Judge that the finding essential to support this verdict “is based upon one inference which rests in turn upon another inference.” Under the recent decisions of the United States Supreme Court in F.E.L.A. cases, speculation, conjecture and possibilities suffice to support a jury verdict.

It should be pointed out that the Trial Court’s decision on the motion for judgment, notwithstanding the verdict, was handed down January 4, 1956, a year before the recent decisions of the United States Supreme Court on this subject, cited herein.

For the foregoing reasons, the judgment of the District Court is reversed and the cause remanded with directions to vacate the order granting judgment, notwithstanding the verdict, and to enter judgment on the verdict.