IPSA LOQUITUR IN FELA CASE To SUSTAIN JURY VERDICT FOR PLAINTIFF, ALTHOUGH PLAINTIFF DID NOT RAISE THE DOCTRINE

Plaintiff instituted an action under the Federal Employers' Liability Act,' alleging that defendant was negligent in that it "should have known of the [defective mechanism and] . . . failed to make proper repairs." 2 The plaintiff at no time explicitly mentioned the doctrine of res ipsa loquitur; the defendant limited its defense to the question of damages. The district court instructed the jury that to be liable the defendant must have had actual or constructive knowledge of the defective mechanism prior to the accident. The jury returned a verdict for the plaintiff, and the trial court, on defendant's motion, granted a new trial 3 which resulted in a verdict for the defendant. The Court of Appeals for the Third Circuit, en banc, with two judges dissenting, held that the evidence presented a res ipsa loquitur situation which justified the inference of negligence. The court reinstated the verdict of the first trial, even though the doctrine had not been raised at either trial below. The court stated that res ipsa loquitur