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December 7, 1951


The opinion of the court was delivered by: GOURLEY

This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for injuries sustained while plaintiff was employed as a brakeman for the Montour Railroad Company.

It is not in dispute that defendant was engaged in interstate commerce and that plaintiff was performing duties incident thereto at the time of accident.

 At the close of plaintiff's case and at completion of all the evidence the defendant moved for a directed verdict. The Court denied the motion and submitted the case to the jury which returned verdict for plaintiff in the amount of $ 80,000.

 The matters before the Court for determination are two-fold:

 (1) Motion to set aside the verdict or for judgment notwithstanding the verdict.

 (2) Motion for new trial.

 (1) Motion to Set Aside the Verdict or for Judgment Notwithstanding the Verdict.

 The defendant contends:

 (1) There is no evidence in the record from which an inference of negligence on the part of the railroad can be drawn.

 (2) If said negligence does exist, there is no basis that said negligence was the proximate cause of the accident in whole or in part.

 (3) The record conclusively shows that the intervening act of negligence of the plaintiff was the proximate cause of the accident rather than any negligence on the part of the defendant.

 A motion for a directed verdict or judgment notwithstanding the verdict under the Federal Rules of Civil Procedure, 28 U.S.C.A., raises a question of law only; that is whether there is any evidence which, if believed, would authorize a verdict against the defendant and the trial court in considering such motion does not exercise any discretion but makes only a ruling of law. Marsh v. Illinois Central R. Co., 5 Cir., 175 F.2d 498; Grayson v. Deal, D.C., 85 F.Supp. 431.

 The court cannot concern itself with the credibility of the witnesses or the weight of the evidence. Roth v. Swanson, 8 Cir., 145 F.2d 262.

 The court is not free to reweigh the evidence and set aside the jury's verdict merely because the jury could have drawn different inferences or conclusions, or because the court regards another result as more reasonable. Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 64 S. Ct. 409, 88 L. Ed. 520; Masterson v. Pennsylvania R. Co., 3 Cir., 182 F.2d 793.

 Where uncertainty as to the existence of negligence arises from a conflict in the testimony, or because the facts being undisputed, fair-minded men will honestly draw different conclusions from them, the question is not one of law but of fact to be settled by the jury. Gunning v. Cooley, 281 U.S. 90, 94, 50 S. Ct. 231, 74 L. Ed. 720.

 The choice of conflicting versions of the way the accident happened, the decision as to which witness is telling the truth and the inferences to be drawn from the uncontroverted facts and the controverted facts are questions for the jury. If there is a reasonable basis in the record for concluding that it was negligence of the employer which caused the injury, it would be an invasion of the jury's function for the court to draw contrary inferences or to conclude that a different conclusion would be more reasonable. Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S. Ct. 598, 91 L. Ed. 572; Lavander v. Kurn, 327 U.S. 645, 66 S. Ct. 740, 90 L. Ed. 916.

 The Federal Employers' Liability Act permits recovery for personal injuries to an employee of a railroad engaged in interstate commerce, if such injuries result in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works or other equipment. Lavender v. Kurn, supra.

 The employer's liability is to be determined by the general rule which defines negligence as the lack of due care under the circumstances; or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances in a situation, or doing what such a person under existing circumstances would not have done. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S. Ct. 444, 87 L. Ed. 610; Brady v. Southern Ry. Co., 320 U.S. 476, 64 S. Ct. 232, 88 L. Ed. 239.

 In determining whether there was negligence, the employer's conduct may be viewed as a whole, especially where the several elements from which negligence might be inferred are so closely interwoven as to form a single pattern and where each imparts character to the other. Blair v. Baltimore & O.R. Co., 323 U.S. 600, 65 S. Ct. 545, 89 L. Ed. 490.

 All testimony introduced by plaintiff or defendant should be considered in determining the facts, and hence negligence disclosed by testimony of defendant would be considered notwithstanding plaintiff did not set forth such negligence in his pleading. Stafford v. Roadway Transit Co., D.C., 70 F.Supp. 555, 557, affirmed, 3 Cir., 165 F.2d 920, 921.

 The issues thus presented require a statement concerning the manner in which plaintiff received the injuries which are the basis for this action.

 Plaintiff Denny was head brakeman of a crew engaged in a shifting operation at the mine. The crew consisted, in addition to plaintiff, of a conductor, a flagman, an engineman and a fireman. After completing various maneuvers which had no bearing upon the happening of the accident, they moved a draft of cars in an eastwardly direction toward the tipple ...

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