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MYERS v. READING CO.

December 28, 1945

MYERS
v.
READING CO.



The opinion of the court was delivered by: BARD

Defendant moves to set aside the verdict and judgment entered in favor of plaintiff and to have judgment entered in accordance with its motion for directed verdict under Rule 50 of the Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c, for the reason that there was insufficient evidence to support the verdict.

Plaintiff brought this action under the Federal Employers' Liability Act *fn1" and the Safety Appliance Act *fn2" to recover for injuries sustained while classifying coal hoppers at the Port Richmond yard of the Reading Company.

 The evidence adduced at trial pertinent hereto follows:

 Plaintiff was employed by defendant as a conductor in charge of a freight train shifting crew at its Port Richmond yard. In the early evening of June 10, 1944, the crew shifted seven coal cars and coupled them to three other cars standing near a bumper at the end of the classification track. The track was curved and, at the completion of the coupling operation, the engine was at the far end of the curve so that the engineer did not have a clear view of the other members of the crew. Plaintiff directed a new employee to set the brakes on each car in accordance with company regulations before the crew proceeded to a new operation. Plaintiff checked the cars and, when he reached the seventh car from the engine, discovered the brake had not been tightened. He then mounted the brake step or platform and began to tighten the brake.

 Plaintiff testified that he felt a movement of the train and a quick jar on his car, as though the slack was being run out in order to uncouple the engine; that he signaled 'stop' with the lantern he was carrying on his left arm; that the wheel on the hand brake kicked back; that he could not hold the brake; and that he fell to the ground injuring his back.

 Several members of the switching crew appeared on behalf of defendant. They testified that the train did not move after the cars were coupled; that they found plaintiff on the ground but did not see him fall from the brake step; and that earlier in the evening plaintiff had complained of illness.

 Under the provisions of Rule 49(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c, I submitted six written interrogatories to the jury and instructed the jury to answer the interrogatories in writing and, in addition, to render a general verdict. The interrogatories and the answers thereto are set forth in the margin. *fn3" The jury returned a verdict in favor of plaintiff in the amount of $ 5000

 In the complaint and in the presentation of evidence, plaintiff offered two theories upon which recovery could be predicated. First, plaintiff contended that, while he was tightening the brake, the train moved without warning and without authorization from plaintiff, who was train conductor in charge of the work, and that this movement constituted negligence on the part of defendant's employees which would justify recovery under the Federal Employers' Liability Act. Secondly, plaintiff contended that the brake was not efficient and contributed to his injuries, so that he was entitled to recover under the Safety Appliance Act.

 As indicated in their answers to the interrogatories, the jury accepted a portion of defendant's evidence and found as a fact that the train did not move after the coupling operation. Thus the jury rejected plaintiff's theory of recovery for negligence under the Federal Employers' Liability Act.

 However, the jury did find as a fact that the hand brake was inefficient and that it caused or contributed to plaintiff's injury.

 Defendant moved for judgment non obstante verdicto on the ground that there was insufficient evidence to support a finding that the brake was inefficient and that, as a matter of law, plaintiff failed to make a case under the Safety Appliance Act. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S. Ct. 189, 85 L. Ed. 147. In determining the motion for judgment non obstante verdicto I must assume that plaintiff's evidence proves all that it reasonably may be found sufficient to establish and must draw in favor of plaintiff all inferences which are fairly deducible from these facts. Baltimore & Ohio Railroad Co. v. Groeger, 266 U.S. 521, 45 S. Ct. 169, 69 L. Ed. 419; Hawkins v. Sims, 4 Cir., 137 F.2d 66; Aetna Casualty & Surety Co. v. Yeatts, 4 Cir., 122 F.2d 350. However, since the jury in answering the interrogatories found as a fact that the train did not move after the coupling operation, and there is adequate evidence to support that finding, I must accept that finding notwithstanding plaintiff's testimony to the contrary.

 The sole question for determination here is whether there was sufficient evidence to permit the jury to base their verdict for plaintiff upon a finding that the brake in question was not efficient.

 The Safety Appliance Act provides that all cars must be equipped with 'efficient' hand brakes. *fn5" The purpose of the statute is to supplant the qualified common law duty of care of the railroad with an absolute duty. Therefore, if the railroad does not comply with the prescribed standard, it violates the law and must compensate those injured as a result thereof without ...


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