GALLICK v. BALTIMORE & OHIO R. CO.(1963)
While working on a railroad near a stagnant, vermin-infested pool of water, petitioner suffered an insect bite which became infected and ultimately resulted in the loss of both of his legs. He sued the railroad in a state court under the Federal Employers' Liability Act, alleging that the railroad was negligent in maintaining a stagnant pool that attracted vermin and insects. Upon a special verdict of the jury, the trial court entered judgment awarding damages to petitioner. The state appellate court reversed on the ground that proof of a causal connection between the negligence and damage fell short of that required for the consideration of a jury. Held: The state appellate court improperly invaded the function and province of the jury, and its judgment is reversed. Pp. 109-122.
Marshall I. Nurenberg argued the cause for petitioner. With him on the briefs were A. H. Dudnik and Meyer A. Cook.
Alexander H. Hadden argued the cause for respondent. With him on the briefs were Raymond T. Jackson and Russell E. Leasure. [372 U.S. 108, 109]
MR. JUSTICE WHITE delivered the opinion of the Court.
Upon a special verdict of the jury, the Common Pleas Court of Cuyahoga County, Ohio, entered judgment awarding damages to petitioner in this Federal Employers' Liability Act 1 suit. The Court of Appeals reversed, 173 N. E. 2d 382, and the Ohio Supreme Court refused further appellate review, 172 Ohio St. 488, 178 N. E. 2d 597, making the decision of the intermediate appellate court the final judgment rendered by the state courts. This Court granted certiorari, 369 U.S. 848 , to consider the question whether the decision below improperly invaded the jury's function. We have concluded that the decision below is erroneous and must be reversed.
Petitioner was a spotting crew foreman working on or about August 10, 1954, along the respondent railroad's right of way in the Cuyahoga River "flats" section of Cleveland, Ohio. At the particular stretch of roadbed where petitioner was working on that afternoon, there had been for many years a pool of stagnant water, in and about which were dead and decayed rats and pigeons, or portions thereof. Insects had been seen on, over, and about this stagnant pool, and the evidence showed, as the Court of Appeals stated, that respondent had long been aware of the fetid condition of this pool. 173 N. E. 2d, at 383. While he was temporarily working near the pool, petitioner experienced a bite on his left leg just above the knee. He grasped the spot with his hand and felt an object under his trousers which seemed to be a large insect and which, when he crushed it, dropped out of his trouser leg. The wound subsequently became infected. The infection failed to respond to medical treatment, and worsened progressively until it spread throughout petitioner's body, creating pus-forming lesions and eventually necessitating the amputation of both his legs. None of the [372 U.S. 108, 110] doctors who treated and studied petitioner's case could explain the etiology of his present condition, although some of them diagnosed or characterized it as "pyodermagangrenosa, secondary to insect bite." See id., at 384.
The Federal Employers' Liability Act makes railroads liable in damages to any employee suffering "injury or death resulting in whole or in part from the negligence of . . . [the] carrier, or by reason of any defect or insufficiency, due to its negligence, in its . . . roadbed . . . or other equipment." 45 U.S.C. 51. In his complaint petitioner alleged respondent's negligence both in permitting the stagnant pool to accumulate dead vermin and attract insects, and in its furnishing a defective and unsafe place for petitioner's work. The respondent denied any negligence and contended that if petitioner's serious injuries resulted from an insect bite sustained while working on railroad property, such consequences "were beyond the realm of reasonable probability or foreseeability, with the result that no duty arose" to exercise due care to protect petitioner "from any such risk." 173 N. E. 2d, at 384.
After a lengthy trial, the court, pursuant to the State's special verdict statute, Ohio Rev. Code, 2315.15, under which no general verdict is rendered by the jury, submitted some two dozen interrogatories to the jury and charged them as to what it deemed the applicable law of negligence. The special verdict of the jury, to the extent that it is relevant here, follows (answers italicized):
We think that the Court of Appeals improperly invaded the function and province of the jury in this Federal Employers' Liability Act case. According to the Court of Appeals, the break in the causal chain that turned it into a mere "series of guesses and speculations" was the want of evidence from which the jury could properly conclude that respondent's fetid pool had had something to do with the insect that bit petitioner. The only question was whether or not the insect was from or had been attracted by the pool. We hold that the record shows sufficient evidence to warrant the jury's conclusion that petitioner's injuries were caused by the acts or omissions of respondent.
As the Court of Appeals stated, "insects were seen on, over and about this stagnant pool." According to petitioner's undisputed testimony, he stood near the pool for about a half a minute; then he started to walk away and was bitten on the leg after he took a few steps, perhaps one or two seconds later. Petitioner also testified, on cross-examination, that he had at times seen insects of about the same size as that which bit him crawling over the dead rats and pigeons in the stagnant pool. And on cross-examination by respondent two medical witnesses testified that stagnant, rat-infested pools breed and attract insects. 3 Moreover, the jury specifically found that the pool accumulated and attracted bugs and vermin. [372 U.S. 108, 114]
The Court of Appeals erred in demanding either "direct evidence that the existence of the unidentified bug at the time and place had any connection with the stagnant and infested pool" or else more substantial circumstantial evidence than that adduced here "that the pool created conditions and influences which helped to incubate or furnish an environment for the bug . . . or that the insect, having traveled from other areas, became contaminated or infected by the pool." 173 N. E. 2d, at 388. Under the ruling cases in this Court the evidence present was sufficient to raise an issue for the jury's determination as to whether the insect emanated from the pool.
In Tennant v. Peoria & P. U. R. Co., 321 U.S. 29 , one of the leading cases, the Court granted certiorari "because of important problems as to petitioner's right to a jury determination of the issue of causation." There was no direct evidence of how the decedent was killed. There was evidence that the respondent railroad had been negligent or careless in failing to ring a warning bell before moving an engine, and evidence that the victim was killed by being run over by a train. The question of how the victim met his death was susceptible to various answers, all somewhat conjectural because of the want of direct evidence, some of which supported petitioner's claims and others respondent's. The Court of Appeals set aside a jury verdict for petitioner for failure of the evidence to make out proximate cause, but this Court reversed:
These cases, as does the instant case, all involved the question of whether there was evidence that any employer negligence caused the harm, or, more precisely, enough to justify a jury's determination that employer negligence had played any role in producing the harm. In the more recent case, Rogers v. Missouri Pac. R. Co., 352 U.S. 500 , one of the questions was whether, given the antecedent negligence or carelessness of the employer in maintaining a roadside surface with loose, slippery gravel instead of a firm, flat footing, the causal impact of such neglectfulness was negatived by the subsequent or concurrent negligence of the employee in failing to pay attention to what he was supposed to be doing. Although the context is thus somewhat dissimilar to the present one, the language used in the opinion is most apposite:
Although we have concluded that the jury could properly find that there was a causal relationship between the railroad's negligence and petitioner's injuries, that does not end the case. 4 Respondent makes the further argument that the judgment under review may be sustained on the alternative ground, not accepted by the Court of Appeals, that the injury was not reasonably foreseeable, and that therefore there was no negligence.
We agree with respondent that reasonable foreseeability of harm is an essential ingredient of Federal Employers' Liability Act negligence. Inman v. Baltimore & O. R. Co., 361 U.S. 138, 140 ; see Brady v. Southern R. Co., 320 U.S. 476, 483 -484; Tiller v. Atlantic C. L. R. Co., 318 U.S. 54, 67 ; Ringhiser v. Chesapeake & O. R. Co., 354 U.S. 901, 903 , 905 (dissenting opinions); Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 503 ; cf. Morales v. City of Galveston, 370 U.S. 165, 171 ; Dalehite v. United States, 346 U.S. 15, 42 . 5 But this requirement has been satisfied in the [372 U.S. 108, 118] present case by the jury's findings (Nos. 10, 14-19, 21) of negligence in maintaining the filthy pool of water. The jury had been instructed that negligence is the failure to observe that degree of care which people of ordinary prudence and sagacity would use under the same or similar circumstances; 6 and that defendant's duty was measured by what a reasonably prudent person would anticipate as resulting from a particular condition - "defendant's duties are measured by what is reasonably foreseeable under like circumstances" - by what "in the light of the facts then known, should or could reasonably have been anticipated." 7 Thus when the jury found these facts: petitioner was bitten by an insect; the insect bite caused illness or disease and led to petitioner's present physical condition; the stagnant pool attracted bugs and vermin and was responsible for the insect bite and the injuries to petitioner; and respondent knew that the accumulation of the pool of water would attract bugs and [372 U.S. 108, 119] vermin to the area - it is clear that the jury concluded that respondent should have realized the increased likelihood of an insect's biting petitioner while he was working in the vicinity of the pool.
Respondent places reliance, however, upon two special interrogatories returned by the jury. In one, No. 22, the jury found that respondent could not foresee that the stagnant pool would set into being a chain of events that would culminate in petitioner's present physical condition - loss of two limbs, widespread ulcerations, and permanent disability. In the other, No. 20, the jury found that respondent did not have reason to anticipate that its maintenance of the pool "would or might probably result in a mishap or an injury." It is said that interrogatories Nos. 20 and 22 are findings of no foreseeability, and that there is therefore a fatal inconsistency among the jury's findings and that they cancel one another out, necessitating a judgment for the defendant, or at least a new trial. See Freightways, Inc., v. Stafford, 217 F.2d 831, 835 (C. A. 8th Cir.); Fed. Rules Civ. Proc. 49 (b). See also Larrissey v. Norwalk Lines, 155 Ohio St. 207, 214-215, 98 N. E. 2d 419, 423-424; Klever v. Reid Bros., 151 Ohio St. 467, 476, 86 N. E. 2d 608, 612. But it is the duty of the courts to attempt to harmonize the answers, if it is possible under a fair reading of them: "Where there is a view of the case that makes the jury's answers to special interrogatories consistent, they must be resolved that way." Atlantic & Gulf Stevedores, Inc., v. Ellerman Lines, Ltd., 369 U.S. 355, 364 . We therefore must attempt to reconcile the jury's findings, by exegesis if necessary, as in Arnold v. Panhandle & S. F. R. Co., 353 U.S. 360 ; McVey v. Phillips Co., 288 F.2d 53 (C. A. 5th Cir.); Morris v. Pennsylvania R. Co., 187 F.2d 837 (C. A. 2d Cir.) (collecting authorities), before we are free to disregard the jury's special verdict and remand the case for a new trial. [372 U.S. 108, 120]
We do not believe that the conclusion of fatal inconsistency is compelled by these findings. In the first place, the jury might not have equated a foreseeable insect bite with a mishap or injury. The trial judge more than once in his instructions separated an "insect bite" from "injury," "infection," "illness" or "disease." The answer to Question 20 thus might mean simply that while an insect bite was foreseeable, there was no reason to anticipate a "mishap" or "injury" from such a bite. This answer therefore falls in the same category as the jury's response to Question 22, where the jury found that there was no reasonably foreseeable causal relationship between the insect bite and the present physical condition of the plaintiff. It is widely held that for a defendant to be liable for consequential damages he need not foresee the particular consequences of his negligent acts: assuming the existence of a threshold tort against the person, then whatever damages flow from it are recoverable. See, e. g., Boal v. Electric Battery Co., 98 F.2d 815, 819 (C. A. 3d Cir.); Koehler v. Waukesha Milk Co., 190 Wis. 52, 57-63, 208 N. W. 901, 903-905 (collecting authorities); Restatement, Torts, 435; 2 Harper and James, Torts, 1139-1140; Prosser, Torts, 260 (2d ed.); Seavey, Mr. Justice Cardozo and the Law of Torts, 48 Yale L. J. 390, 402-403. 8 And we have no doubt that under a statute where the tortfeasor is liable for death or injuries in producing which his [372 U.S. 108, 121] "negligence played any part, even the slightest" (Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 506 ) such a tortfeasor must compensate his victim for even the improbable or unexpectedly severe consequences of his wrongful act. Cf. Kernan v. American Dredging Co., 355 U.S. 426 ; Coray v. Southern Pac. Co., 335 U.S. 520 ; Lillie v. Thompson, 332 U.S. 459 . The answers to these two interrogatories are therefore not controlling for Federal Employers' Liability Act purposes.
In the second place, in deciding whether respondent had reason to anticipate and foresee any harm to petitioner, the trial court instructed the jury to take into account "the past experience respecting the location and conditions in question" and the fact "that no occurrence of the kind here alleged either occurred, or was known by defendant to have occurred, at or near this place before August of 1954." 9 The jury thus might have determined that, since there had been no similar incidents at this pool in the past, the respondent had no specific "reason" for anticipating a mishap or injury to petitioner - a far too narrow a concept of foreseeable harm to negative negligence under the Federal Employers' Liability Act. Thus there is a second and independent ground for the court to have put aside No. 20 as immaterial. Looking at No. 20 in the context of the charge and the total context of the special verdict, see McVey v. Phillips Co., 288 F.2d 53, 59 (C. A. 5th Cir.); Halprin v. Mora, 231 F.2d 197, 201 [372 U.S. 108, 122] (C. A. 3d Cir.), we cannot assign it sufficient weight to warrant overturning the judgment of the trial court entered pursuant to the jury's special verdict.
We have examined respondent's other contentions and found them without merit, including the contention that there was insufficient evidence to support the finding of negligence. The Court of Appeals erred in depriving petitioner of the judgment entered upon the special verdict of the jury. Arnold v. Panhandle & S. F. R. Co., 353 U.S. 360 . The judgment of the Ohio Court of Appeals is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
[ Footnote 2 ] For the same reason the Court of Appeals found error in the trial court's refusal to enter a judgment n. o. v. See Journal Entry, R. 629.
[ Footnote 3 ] The Court of Appeals emphasized the fact that no similar bite was ever complained about, as a factor in gauging the probability that the actual causal chain corresponded to petitioner's theory of the case, 173 N. E. 2d, at 387; it accepted as supported by "sufficient credible evidence" the finding that an insect bit petitioner, but it disagreed [372 U.S. 108, 114] with the finding that pool and insect bite were related. Although the record does not show that any complaint was ever made to respondent about insect bites, petitioner testified that he had complained to the section foreman about the vermin-infested pool several times and another witness testified that he was bitten by an insect near it in or about September 1954.
[ Footnote 4 ] See B. F. Goodrich Co. v. United States, 321 U.S. 126, 127 ; United States v. American R. Exp. Co., 265 U.S. 425, 435 ; Frey & Son, Inc., v. Cudahy Packing Co., 256 U.S. 208, 210 .
[ Footnote 5 ] Kernan v. American Dredging Co., 355 U.S. 426 , was concerned with the breach of a statutory or regulatory duty and does not control or purport to define the content of nonstatutory or nonregulatory duties amounting to negligence for the purposes of the Federal Employers' Liability Act.
[ Footnote 6 ] "Negligence is sometimes said to be a failure to observe for the protection of the rights of others that degree of care, precaution, and vigilance which the circumstances justly demand, and sometimes, in other words, it is said that negligence is the failure to observe ordinary care, and ordinary care is that degree of care which people of ordinary prudence and sagacity use under the same or similar circumstances. What would ordinarily prudent persons have done under like circumstances?"
[ Footnote 7 ] "The B & O in this case was not required to guard against that which a reasonably prudent person, under the circumstances, would not anticipate as likely to happen. If a person has no reasonable ground to anticipate that a particular condition . . . would or might result in a mishap and injury, then the party is not required to do anything to correct such a condition. You must apply this rule to this case. . . . Defendant's duties are measured by what is reasonably foreseeable under like circumstances. . . . In measuring the B & O's conduct here, the point of view to be taken should be the view before the mishap occurred, to see what, in the light of the facts then known, should or could reasonably have been anticipated. And you must follow this rule in this case."
[ Footnote 8 ] "If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable." Restatement, Torts, 435. "In these and like cases of what well may be called direct consequences, the courts generally hold defendant liable for the full extent of the injury without regard to foreseeability." 2 Harper and James, Torts, p. 1140. "There is almost universal agreement upon . . . liability for unforeseeable consequences when they follow an impact upon the person of the plaintiff." Prosser, Torts, 260.
[ Footnote 9 ] "In measuring the B & O's duty to anticipate - that is, in considering how much and how far the defendant ought to have gone in foreseeing and guarding against possible mishaps and dangers - the past experience respecting the location and conditions in question may properly be drawn upon. It is entirely proper in this case to take into account the fact . . . that no occurrence of the kind here alleged either occurred, or was known by defendant to have occurred, at or near this place before August of 1954, as . . . indicating what the defendant here should reasonably have foreseen for the future."
MR. JUSTICE HARLAN, dissenting.
Heartrending as the petitioner's accident has turned out to be, I think this case should not have been brought here. It involves no unsettled questions of federal law calling for decision by this Court, nor, in any acceptable sense, a departure by the state courts from legal principles already decided requiring this Court's intervention. The case thus does not qualify for review under Rule 19. * See the dissenting opinion of Mr. Justice Frankfurter in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524 , and the separate opinion of this writer, p. 559. The case has [372 U.S. 108, 123] necessarily required an inordinate amount of time, which the Court can ill afford in the present state of its docket.
Reaching the merits, however, id., pp. 559-562, I would affirm the judgment below. I agree with my Brothers STEWART and GOLDBERG as to the inconsistency of the jury's verdict. But in addition, I cannot say that the view of the record taken by the state courts, in holding that the evidence on the issue of causation was insufficient to make a case for the jury, was an arbitrary or unreasonable one. The opinion of the Ohio Court of Appeals evinces a conscientious effort to follow this Court's decisions under the Federal Employers' Liability Act, and more particularly the broad pronouncements made in the Rogers case, supra. On this score the Court's reversal seems to me no more than an exercise in second-guessing the state court's estimate of the record.
From another standpoint this case does have significance. It affords a particularly dramatic example of the inadequacy of ordinary negligence law to meet the social obligations of modern industrial society. The cure for that, however, lies with the legislature and not with the courts.
[ Footnote * ] In pertinent part, Rule 19 provides:
We cannot agree with the Court's disposition of this case, in view of the jury's explicit finding that injury to the petitioner was not reasonably foreseeable. As the Court correctly states, "foreseeability of harm is an essential ingredient of Federal Employers' Liability Act negligence." Interrogatory No. 20 was unambiguous: "[W]as there any reason for the defendant B & O to anticipate that such [maintenance of a stagnant, infested pool] would or might probably result in a mishap or an injury?" In our view the jury's answer to this interrogatory, finding [372 U.S. 108, 124] that the railroad had no reason here to anticipate mishap or injury, was irreconcilably inconsistent with its finding of negligence in answer to Interrogatory No. 16, and a new trial should have been ordered.
The Court agrees that the answer to Interrogatory No. 20 was inconsistent with the jury's answer to Interrogatory No. 16. But instead of concluding that this inconsistency cancels out the several findings involved and thus voids the entire verdict, the Court undertakes to search for an alternative meaning to be given to Interrogatory No. 20 in order to bring it into line with the special finding which favors the petitioner. The Court seeks support for this Procrustean exercise in the often-repeated admonition that courts should make every effort "to reconcile the jury's findings, by exegesis if necessary, . . . before we are free to disregard the jury's special verdict and remand the case for a new trial." We think this generally sound guideline is misapplied in the present case.
The duty of courts to attempt to reconcile inconsistent jury findings has emerged from cases in which the jury answered special interrogatories and also returned a general verdict. See, e. g., Arnold v. Panhandle & S. F. R. Co., 353 U.S. 360 . 1
The inconsistencies which the courts have dealt with in these cases were inconsistencies between a general verdict for one of the parties and seemingly conflicting special findings in answer to added interrogatories. The purpose of such an effort has been to preserve, if possible, [372 U.S. 108, 125] the integrity of the jury's general verdict. As one leading commentator has explained, in the context of Federal Rule 49 (b),
We agree with the Court, and hence disagree with our Brother HARLAN, about the sufficiency of the evidence on the issue of causation to make a case for the jury under the standards laid down by this Court, e. g., Rogers v. Missouri Pac. R. Co., 352 U.S. 500 . We also agree with the Court that no inconsistency with a finding of negligence arises from the jury's answer to Interrogatory No. 22, wherein it found that the railroad had no reason to anticipate the extent of the petitioner's injuries. In our view the answer to Interrogatory No. 22 was simply immaterial, because the interrogatory asked, in effect, whether the extent of the petitioner's injuries was foreseeable - an issue irrelevant to the merits of the case, as the Court's opinion aptly points out.
Our disagreement with the Court arises, therefore, only from its treatment of the jury's answer to Interrogatory No. 20. Since, as the Court recognizes, foreseeability of harm (as distinguished from foreseeability of the extent of injury covered by Interrogatory No. 22) is the test of liability in FELA cases, the jury's answer to Interrogatory No. 20 is plainly and irreconcilably inconsistent with its answer to Interrogatory No. 16. 3 Because the jury in [372 U.S. 108, 127] answer to No. 16 found that the railroad was negligent, and yet at the same time specifically found in answer to No. 20 that the mishap was unforeseeable, it is, in our view, impossible to enter a judgment for either party based on these findings. By undertaking to reconcile irretrievably conflicting findings of the jury, the Court, we think, has made the same error that it correctly attributes to the Ohio Court of Appeals - it has invaded the province of the jury under this federal statute. We would avoid such an intrusion by ordering that the cause be put to another jury.
For these reasons we would set aside the judgment and remand this case for a new trial.
[ Footnote 1 ] Atlantic & Gulf Stevedores, Inc., v. Ellerman Lines, Ltd., 369 U.S. 355 , is not to the contrary. In that case it was held that the Court of Appeals had erroneously synthesized a conflict between answers to special interrogatories, when no conflict appeared on the face of the several answers, and none was compelled by the theories underlying the several questions.
[ Footnote 2 ] Indeed, were it proper to indulge in a process of speculation to derive meaning for one answer from the content of others - as the majority does to support its conclusion that the answer to Interrogatory No. 16 is the overriding one - support for preferring the answer to Interrogatory No. 20 and entering judgment for respondent could be gained from the jury's response to Interrogatory No. 13, wherein it could not agree on whether petitioner had been furnished an unsafe place to work, thereby further contradicting the existence of negligence which was found in answer to Interrogatory No. 16.
[ Footnote 3 ] Reference to the court's oral instructions to the jury concerning Interrogatories Nos. 16 and 20 additionally negatives the Court's attempted reconciliation of the jury's answers to these questions. The [372 U.S. 108, 127] description of negligence in No. 16 was merely a statement cast in terms of a "failure to observe ordinary care," without any suggestion that the "failure to observe for the protection of the rights of others that degree of care, precaution, and vigilance which the circumstances justly demand" had to be a failure in relation to this plaintiff. In contrast to the negligence in the abstract which the jury can be said to have found in answer to Interrogatory No. 16, the judge instructed with reference to Interrogatory No. 20 that "In answering this question you are instructed that it is a matter of law [that] the defendant B & O is only to be held to a reasonable degree of care, and not to the performance of practicable impossibilities, but that where the proofs justify with reason the conclusion that the employer's negligence played any part, even the slightest, introducing [sic - in producing?] the injury, then the employer has a duty to anticipate that such injury would or might probably result." This instruction dealt with the defendant railroad's duties as an employer in relation to the petitioner in a manner which the instruction concerning Interrogatory No. 16 had not. Moreover, it was, if anything, unduly favorable to petitioner in its equation of foreseeability with causation in fact, and yet the jury answered Interrogatory No. 20 in the negative. [372 U.S. 108, 128]