Moore v. Chesapeake & Ohio Railway Company (340 U.S. 573)/Dissent Black
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting.

The complaint in this case alleged that petitioner's husband, while performing his duties as a railroad brakeman, was thrown from a footboard at the back of a tender and killed as a result of a sudden and unexpected stop made by the engineer. That these allegations, if proved, supported the jury's finding of negligence is not and could not be denied. I have no doubt but that the following evidence was sufficient to justify such a finding and the verdict for petitioner:

Decedent was an experienced brakeman with respondent railroad, having served in that capacity for about seven years. On the day of the accident, his duty required him to ride the footboard on the rear of a tender which was being moved backwards by an engine coupled to 33 loaded freight cars. The engineer testified that he suddenly threw the engine into reverse and made an emergency stop without warning. Decedent's badly broken and mutilated body was found lying beside the track. He had died as a result of his injuries.

Unless we are to require the element of proximate cause to be proved by eyewitness testimony, a reasonable jury certainly could infer from the foregoing facts that the sudden stopping of the engine threw the decedent to his death. Yet the Court apparently ignores this strong circumstantial evidence by relying upon the engineer's testimony that he made the sudden stop after he saw the decedent 'somersault' off the tender. Of course, had the jury believed both that the engineer stopped the train abruptly and that he did so at the time he said he did, it would have found for respondent. But as the Court concedes, the jury was not compelled wholly to accept or wholly to reject the engineer's version. It was entitled to credit part of his testimony and discredit the balance, especially since there were noticeable inconsistencies, improbabilities and self-interest in the engineer's story as to how and when the fall occurred. If the jury rejected the statement that decedent fell before the engine stopped, it could find for petitioner on the basis of the circumstantial evidence previously set out.

The trchnique used today in depriving petitioner of her verdict is to frame the issue in terms of 'When did the decedent fall?' and then to hold that petitioner failed to sustain the burden of proof because she introduced no eye-witness evidence on this point. Such a myopic view loses sight of all the circumstances from which the time and cause of the fall can be inferred. What the record shows is that petitioner tried the case on a theory that decedent's fall resulted from a sudden stoppoing of the engine, while respondent asserted the theory that the fall was due to a heart attack. Although there was some showing that decedent had been afflicted with heart trouble in the past, respondent failed to produce any evidence that the body when found gave indications of heart disease. The jury therefore quite reasonably rejected respondent's theory for lack of proof. Just as reasonably, it accepted the petitioner's evidence as proving the allegations of her complaint. In my opinion, the taking of this verdict from petitioner is a totally unwarranted substitution of a court's view of the evidence for that of a jury.

I would reverse. 

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