Elick D. Tittman v. Great Northern Railway Company

Tittman, a brakeman, was injured in the Great Northern Hillyard yards at Spokane, Washington, on June 3, 1955. He was on duty as an employee of the company and tripped on a coil of small wire which was somewhat rusted and lying along the tracks where his duty took him. That he was injured by wire where he says he was is established. He asserts he was seriously injured, but the district judge who heard the evidence thought the injuries were somewhat minor. Reduced to a few words, recovery was actually denied upon the ground of a failure of proof as to how and when the wire got to the place where Tittman became entangled with it.

This case under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. was judge-tried. Plaintiff appeals. The errors claimed are, first, that the trial court was wrong in rejecting the doctrine of res ipsa loquitur and, second, it failed to find for the plaintiff. More *794 and more rare are the cases denying liability under this act. However, they can still happen. See Herdman v. Pennsylvania Railroad Co., 352 U.S. 518 , 77 S.Ct. 455 , 1 L.Ed.2d 508 , where the trial court directed a verdict, the Court of Appeals affirmed, and the Supreme Court,…

(dissenting).

The reason I dissent is that I feel I must accept what the trial judge actually said about res ipsa loquitur, and must assume that he meant what he said. That is in Conclusion IV as follows: “That the doctrine of res ipsa loquitur is not applicable under th'e evidence presented in this case.” I perceive no difference between myself and the majority in the view that such statement is incorrect; it is not the law under the facts of this case. The consequence here should be the same as that applied by this court in Wilson v. United States, 250 F.2d 312 , where we held that where the trier of facts has applied improper standards of law to the facts of the case, there must be reversal. As there indicated this court had previously said the same thing in Mar Gong v. Brownell, 9 Cir., 209 F.2d 448 , and in Takehara v. Dulles, 9 Cir., 205 F.2d 560 .

No one supposes that the trial judge here was obliged to find for the plaintiff or to draw any inference of negligence because of the rule of res ipsa loquitur. That is not the point. In saying “the doctrine or res ipsa loquitur is not applicable” the court has said, as plainly as language can say it, that upon this record it…

252 F.2d 793 Elick D. TITTMAN, Appellant, v. GREAT NORTHERN RAILWAY COMPANY, Appellee. No. 15479. United States Court of Appeals Ninth Circuit. Jan. 10, 1958, Rehearing Denied March 31, 1958. Nels Peterson, Gerald H. Robinson, Portland, Or., Paul K. Cooney, Spokane, Wash., for appellant. Clark A. Eckart, Woodrow L. Taylor, Seattle, Wash., Harry T. Davenport, Spokane, Wash., for appellee. Before HEALY, POPE and CHAMBERS, Circuit Judges. CHAMBERS, Circuit Judge. 1 Tittman, a brakeman, was injured in the Great Northern Hillyard yards at Spokane, Washington, on June 3, 1955. He was on duty as an employee of the company and tripped on a coil of small wire which was somewhat rusted and lying along the tracks where his duty took him. That he was injured by wire where he says he was is established. He asserts he was seriously injured, but the district judge who heard the evidence thought the injuries were somewhat minor. Reduced to a few words, recovery was actually denied upon the ground of a failure of proof as to how and when the wire got to the place where Tittman became entangled with it. 2 This case under the Federal Employers' Liability Act, 45 U.S.C.A. 51 et seq. was judge-tried.…