Cipriano v. Greenbelt Consumers Services, Inc.

Per Curiam. The appeal is by an injured employee from a judgment n. o. v. for the employer and insurer, following the jury’s answer that the disability of the employee was the result of an accidental injury arising out of and in the course of employment. The trial judge concluded that the employee had given such contradictory versions of the occurrence resulting in the injury that the jury could only have speculated on what had happened and the claimant, therefore, had not met her burden of proof. The employee testified below that her work was to wrap meat and place it in the display cases of a food store.

She said she had placed about ten roasts of beef on a tray and had carried it to a case, when the tray tilted and consequently hurt her wrist. When asked whether she had “done this before,” she answered: ⁵⁷⁹ ‘T hadn’t put that many roasts on it before. We were busy and I piled it high, extra high that day.” On cross-examination the employer and insurer brought into the case certain statements the employee had given to the insurer’s investigator, to doctors and to the Workmen’s Compensation Commission. The statements are somewhat equivocal and not necessarily at square variance with the employee’s testimony from the stand, but they can be read as saying that her wrist was hurt when the tray was first grasped (rather than when it was being put in the display case), and that she had placed on the tray only the number of roasts she usually did (five, rather than ten).

If the testimony of a party or a witness at the trial is of itself so contradictory that it has no probative force, a jury cannot be invited to speculate about it and to select one or another contradictory statement as the