Angelo Giacalone v. Raytheon Manufacturing Co.

HARTIGAN, Circuit Judge

(dissenting).

In this case the charge of the court on the issue of negligence was as follows':

“We start off with the negligence count first. The law places upon the plaintiff the burden of proving by the greater weight of the evidence that what he says is true. You can’t base a verdict on conjecture or guesswork; you have got to be satisfied by the evidence in the case, by the greater weight of the evidence, that what the plaintiff says is true. If you are still in doubt, there cannot be a recovery.
“Now, this negligence count in substance says that I, the plaintiff, suffered loss because the defendant was negligent. Negligence — it probably will be better not to define it, but in the law, it says that negligence is a disregard of the right of another or the failure to discharge a duty owed another.
“What duty did Raytheon owe this man? What right of this plaintiff’s did Raytheon disregard? If you can come up with no answers, there is no negligence. You have got to find a duty owed and a failure to discharge that duty in order to constitute negligence.”

This language which the opinion of the court refers to as “vague, general, and not as informative as it should have been” constitutes, in my opinion, such fundamental error that I would reverse and remand the case for a new trial.