HICKS, Circuit Judge.
On January 7,1927, Welsh, deceased, was working as a helper to one Lyter, a blacksmith in the shops of appellee. These men had taken a steel bar 87^4 inches long, 6 inches wide, 1 inch thick, and weighing about 130 pounds, and, after heating one end thereof in a furnace, had placed it flat upon a bumping block, and had shoved it through the jaws or dies of an upsetting machine and about an inch and a quarter beyond, leaving about 4 feet of the bar upon the block on the side of the machine nearest the men. To operate the machine Lyter stepped upon a treadle, and thereupon the jaws (one move*able and one immovable) clamped the bar while a plunger struck and bent upward the extended end to form a gib. The jaws then automatically released the bar. This normally completed the operation, and the bar was ready for removal. To remove it from the machine Lyter and Welsh shoved the cold end thereof from 3 to 6 inches laterally toward the moveable jaw, but had not entirely removed it when the machine, on account of some mechanical" defect, suddenly repeated. The moveable jaw struck the bar, caused it to straighten, and it in turn struck Welsh in the abdomen with force sufficient to throw him backward against the furnace. His back came in contact with the fumaee. He exclaimed, “My God, I thought I was killed.” He did not cease working. However, when he went home that night he walked as if lame, and for three successive nights he crawled from his chair to his bed. There were red marks upon his back as if he had been hit by something. He continued to work until September 6th. He then quit, and complained of his back and of lameness in his hips. He became unable to walk, and called an unlicensed chiropractor who found a slight posterior displacement of one of the vertebra to the left. The chiropractor, after having partially readjusted the vertebra, gave him treatments and noticed an improvement. The pain ceased, the muscles were less rigid, and Welsh was able to walk. However, on September 27 he was taken to a hospital, remained there one week, went to his daughter’s, and remained there practically helpless under the care of this daughter and a physician until his death on December 28th following. On November 18th he sued for damages on account of his alleged injury. This suit (case No. 5465) was revived in the name of Mary Welsh, administratrix. The administratrix also brought suit (case No. 5466) for damages for the pecuniary loss sustained by reason of Welsh’s death. The eases were tried together. The court properly assumed, and appellee now practically admits, that there was substantial evidence tending to show that appellee was negligent in furnishing Lyter and Welsh a defective machine, but the court directed a verdict in both eases upon the ground that there was no substantial evidence indicating any causal relation between the occurrence on January 7, 1927, and the injuries sued for in- case No*. 5465 or the death of Welsh for which damages are claimed in suit No. 5466. Appellant challenges the correctness of these directed verdicts.
As to case No. 5465, we think there was error. The measure of damages was physical pain and mental anguish. It was peculiarly for the jury to determine whether any such suffering was caused upon a consideration of the evidence tending to show the violence of the blow and the subsequent lameness and disability of Welsh for at least three nights. In other words, we think there was something more than a mere scintilla of evidence which, if believed by the jury, might sustain a verdict for damages in some amount. In view of the loss of plaintiff’s testimony by his death, we cannot say that there was no- good-faith expectation of recovering the minimum jurisdictional amount.
As to ease No. 5466, the evidence presents a different aspect. The deceased worked steadily at his job from January 7th, the date of his alleged injury, for eight months. Barring the first three nights after he was struck, there is no further substantial evidence of his serious disability until he ceased work in September. The chiropractor then found only a slight subluxation of one of the vertebra. After its partial readjustment, improvement followed. Neither the attending physician nor any hospital attendant was called to testify. They doubtless could have given satisfactory evidence touching deceased’s physical condition and the cause of it. The burden of proof was upon plaintiff, and we conclude that the evidence is too meager to support a finding that death was caused by the blow received nearly a year before.
As to both cases the applicable principles are fully stated in Hardy-Burlingham Min. Co. v. Baker, 10 F.(2d) 277 (C. C. A. 6), and Davlin v. Henry Ford & Son, Inc., 20 F.(2d) 317 (C. C. A. 6).
Case No. 5465 is reversed and ease No. 5466 is affirmed.
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is an appellant.