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October 4, 1951


The opinion of the court was delivered by: CLARY

The matter is before the court for disposition of defendant's motion for a new trial after a verdict in favor of the plaintiff in the sum of $ 60,270.

The action is based upon the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for a back injury sustained by the plaintiff when the locomotive in which he was riding as a fireman derailed and overturned near Lykens, Pennsylvania, on March 10, 1949, in the late afternoon. The derailment occurred on one of the so-called secondary tracks of the Pennsylvania Railroad, a single track extending from Millersberg to Lykens, Pennsylvania. The only train and train crew which defendant operated over that track was that to which the plaintiff was attached as fireman. The derailment occurred at or near a switch permitting operation from the single main track onto a 'scale track'. On the previous day, March 9th, the plaintiff himself had operated that switch in the last known movement of the switch. He testified that he had fixed the switch in a position for operation on the main tract only. The train was operated thereafter through the switch with the engineer on the switch banner side and he testified that at the time the locomotive passed over the switch in an easterly direction towards Millersberg the switch had been properly set. On the return trip the following day with the fireman plaintiff on the switch banner side, he testified that the switch appeared to be in proper order but a derailment occurred at or near the switch, as a result of which plaintiff was thrown from the locomotive and sustained a ruptured intervertebral disc, which under the testimony clearly resulted in complete disability up to the time of trial.

 The trial consumed practically all of three full days and a part of a fourth day. The situation is respect of the trial was somewhat complicated in that in his closing speech defendant's counsel for the first time admitted negligence on the part of the railroad on an explanation advanced by the defendant as to the cause of the happening of the derailment, to wit:

 1. That Lewis, plaintiff, had not closed the switch in the first instance the previous day.

 2. That Hewitt, the engineer, had 'run through' the switch damaging it.

 3. That the 'run through' switch resulted in a cocked switch banner or target which the plaintiff saw, or should have seen, on the return trip on March 10th.

 4. That the combined negligence of the two employees, Lewis and Hewitt, caused the derailment and the resultant injury.

 In the absence of the jury at the conclusion of the third day of trial, the court carefully questioned defense counsel to ascertain the limits of defendant's concession, and was informed that negligence was admitted only under the defendant's theory of the case. Because of that qualified admission it became necessary for the court to advert to the facts of the case a little more extensively in the charge than customarily. A reading of the notes of testimony indicates that both counsel were asked to argue fully the facts to the jury as it was not the intention of the court to do other than briefly outline the case.

 During the trial, while admitting the fact of painful injury, defendant produced testimony to indicate that an apparently simple and minor operation might alleviate or cure plaintiff's condition. This testimony was in direct conflict with testimony adduced by the plaintiff that the operation in question was a serious operation definitely in the 'risk' class, attended by risk of failure or death. Plaintiff produced a prominent neurosurgeon, one who had performed upwards of five hundred of the type of operation here involved. Main reliance was placed by the defendant upon the testimony of a psychiatrist of many years experience who had never, however, performed a surgical operation.

 The defendant's arguments in support of its motion for a new trial may be briefly summarized as follows:

 1. The court erred in its charge to the jury regarding the duty of the plaintiff to mitigate damages by submitting to an operation.

 2. The court's charge unfairly presented the case to the jury by unduly emphasizing the plaintiff's case.

 3. The court erred in allowing the jury to consider the size of the switch target or banner as bearing on the question of defendant's negligence and plaintiff's contributory negligence.

 4. The court erred in allowing the jury to infer negligence from the fact of derailment other than on the defendant's explanation ...

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