Torts

Fact pattern

The plaintiff, P, is a truck driver for a logging company. The logging company has a contract with a rail carrier, calling for the carrier to transport the company’s logs, by train, to various sawmills for processing. The carrier operates out of a railway depot, which a third-party landlord owns and manages. 

The depot contains numerous sections of track, and all these tracks are interconnected. Carriers use the tracks to load, unload, and move freight. At least 50 different carriers use the depot, and at any given time, at least 20 of them are actively moving rail cars around the tracks. During loading, a track switch normally protects a given train, by preventing other cars from accessing the track on which the train sits. From a central control room, the depot’s employees control the configuration of the switches and the movement of cars through the depot.

One day, P drives a truck full of logs to the depot. He parks the truck in a staging area, which is a concrete pad next to a section of track. A line of cars sits on the track, and at the back of the line is a flatbed car that holds a crane. The carrier owns and operates all these cars. During loading, the crane lifts the logs from the truck and places them on an adjacent car for transport.

After parking the truck, P exits to speak to the crane operator. The operator tells P, “Stand back while I load these.” P then walks to a space approximately 20 feet away, while the crane operator begins to move the logs. After about 10 minutes, P remembers that he left his cigarettes in the truck’s cab. He walks back to the truck and climbs into the cab to look for them. 

At that moment, a log falls from the crane onto the cab, crushing the windshield and caving in the roof. P survives, but he is badly injured. P sues both the depot and the carrier for personal injury. Before trial, the depot settles, without admitting fault. The case then goes to trial against the carrier alone. 

At the trial, P testifies that he does not recall the accident. The crane operator testifies that he told P to stay back during loading. The operator also testifies that, as he was lifting the log, a hard jolt caused the crane arm to flex and release the log, which then fell onto P’s truck. Additionally, the jolt caused the crane operator to strike his head against the crane’s control board, knocking him out. Thus, the operator does not remember anything else about the accident. 

Finally, another employee of the carrier testifies that she was some distance away when she saw the log fall, at which time she rushed to the scene. There, she saw the crane car sandwiched between (1) the back of the carrier’s train and (2) three other rail cars that did not belong to the carrier. According to this employee, these three rogue cars collided with the crane car, and this was the cause of the accident. This employee also testifies that at least 20 other carriers were actively moving cars around the depot when the accident occurred.

At the close of evidence, P asks for a jury instruction on res ipsa loquitur. The carrier objects.

Question

Should the judge instruct the jury on res ipsa loquitur? Explain.