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CONRY v. BALTIMORE & O.R. CO.

March 6, 1951

CONRY
v.
BALTIMORE & O.R. CO.



The opinion of the court was delivered by: GOURLEY

This is a claim for damages based on negligence. The case was administered by jury trial. A verdict was returned in favor of the plaintiff and against the defendant in the amount of $ 20,000.00. Judgment was entered on the verdict.

Motions for judgment notwithstanding the verdict and a new trial have been filed by the defendant.

 On the night of the accident the plaintiff, as a pedestrian, was engaged in using the Ninth Street Crossing of said railroad in the Borough of Braddock, Allegheny County, Pennsylvania. His foot caught in a hole at about the middle of the sidewalk of said crossing, which caused him to fall and lose control of his normal faculties. Sometime thereafter he was struck by one of the trains of the defendant at a point approximately one hundred feet west of said crossing. The plaintiff was unable to offer any explanation as to how he became placed on the right of way of the defendant in the position that he was located at the time of his injuries.

 The plaintiff is a resident of Pennsylvania and the defendant a Maryland corporation. The accident occurred in Pennsylvania.

 Federal jurisdiction is based solely on diversity of citizenship. The Court must, therefore, apply the law of the state in which the action is brought, including such state's conflict of laws rules. Reference must, therefore, be made to the place of the tort for the legal effect to be given the facts and evidence. Moran v. Pittsburgh-Des Moines Steel Co., 3 Cir., 166 F.2d 908; Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188. Pennsylvania law, therefore, applies.

 I. Motion for Judgment Notwithstanding the Verdict.

 The questions of law under Rule 50 of the Federal Rules of Civil Procedure, 28 U.S.C.A., were raised by the defendant's motion for directed verdict during trial, and motion for judgment notwithstanding the verdict after trial.

 The problem resolves itself into whether under all the evidence and the reasonable inferences drawn therefrom, considered in the light most favorable to the plaintiff, does a right to recover exist? Marsh v. Illinois Central Railroad Co., 5 Cir., 175 F.2d 498.

 The jury having found the issues in favor of the plaintiff, the Court must take that view of the evidence most favorable to him and the Court must assume that the jury found in his favor all facts which the evidence reasonably tended to prove. Meyonberg v. Pennsylvania, R.R. Co., 3 Cir., 165 F.2d 50; Williams v. Reading Company, 3 Cir., 175 F.2d 32.

 Courts are not free to reweigh the evidence and set aside the jury verdict because the jury could have drawn different inferences or conclusions, or because judges feel that other results are more reasonable. Masterson v. Pennsylvania R.R. Co., 3 Cir., 182 F.2d 793.

 After viewing the evidence and all inferences reasonably to be drawn therefrom in a light most favorable to the plaintiff, it is my judgment, as a matter of law, that under all the evidence a basis exists for which the law affords relief to the plaintiff.

 II. Motion for a New Trial.

 It is contended:

 (a) The Court erred in allowing amendment of the original complaint in that a 'new cause' of action was thereby raised after termination of the statutory period.

 (b) Plaintiff failed to show a duty on defendant's part to maintain the railway crossing either in his pleadings or in his proof.

 (c) The Court erred in instructing the jury relative to wanton negligence.

 (d) The Court erred in charging the jury on disfigurement and mutilation when such was not pleaded or supported by evidence.

 Did the Court Err In Allowing Amendment of the Original Complaint In That a 'New Cause' of Action Was Thereby Raised After ...


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