balance of the entire record could be deemed to have improperly influenced the jury, nor was any comment intended or calculated to do so. Goldstein v. United States, 8 Cir., 63 F.2d 609; Throckmorton v. St. Louis-San Francisco Ry. Co., 8 Cir., 179 F.2d 165.
Considered as a whole, without isolating or separating portions of the record, I feel that the record fairly and adequately presented the issues to the jury for its determination. Van Camp Sea Food Co. v Nordyke, 9 Cir., 140 F.2d 902, certiorari denied 322 U.S. 760, 64 S. Ct. 1278, 88 L. Ed. 1587; Commonwealth v. Cargill, 357 Pa. 510, 55 A.2d 373.
On motion for judgment notwithstanding the verdict, the problem resolves itself into whether under all the evidence the reasonable inferences drawn therefrom, considered in the light most favorable to the plaintiff, does a right to recover exist? Marsh v. Illinois Central R.R. Company, 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. Penna. R.R. Co., 3 Cir., 165 F.2d 50; williams v. Reading Co., 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.
Motion for New Trial
Aside from defendant's allegation of prejudice in motion for new trial, defendant presses the argument that the court erred in presenting two distinct and separate actions upon which plaintiff might be entitled to recover:
(1) Upon failure of the defendant railroad to maintain the Ninth Street Crossing in proper condition which was the proximate cause of the accident, and/or
(2) Upon failure to use ordinary and reasonable care to avoid injury to a trespasser after his presence has been ascertained.
The separate theories of recovery thus presented were in accordance with the mandate of this Circuit. Conry v. Balitmore & Ohio R. Co., 3 Cir., 195 F.2d 120.
Defendant contends that the court erred relative to its instruction on the duties owed by a possessor of land to a trespasser. The precise context of this phase of the charge was taken from Cheslock v. Pittsburg R. Co., 363 Pa. 157, 69 A.2d 108; Frederick v. Philadelphia Rapid Transit Co., 337 Pa. 136, 10 A.2d 576; Green v. Reading Co., 3 Cir., 183 F.2d 716.
The law thus applied is further buttressed in Section 336 of the Restatement of Torts, which this Circuit has acknowledged to be expressive of the Pennsylvania law. Conry v. Baltimore & Ohio R. Co., supra.
Even assuming that the court were in error on its instruction relative thereto, the verdict is sustainable on the alternative theory of negligence relating to the improper maintenance of the Ninth Street Crossing as specifically found in the jury's answer to Interrogatory No. II.
I can find no merit in defendant's further contention that no substantial evidence was developed to prove negligence on the part of defendant. A review of the record will show that the Ninth Street Crossing in the Borough of Braddock was used by the general public as a roadway for a long period of years; that testimony was introduced to show that numerous persons had crossed the tracks at the said crossing on the night of the accident; that a brakeman of defendant railroad admittedly had seen a 'white object' when approximately 250 or 300 feet therefrom, and that the moving train could have been brought to a stop within 40 or 50 feet.
Under such circumstances the brakeman is not entitled to assume that the object is not a human being, but is required to keep the engine under control until he is certain that it is not such. Restatement of Torts, Sec. 336, Comment (b) Illustration.
Defendant objects to this court's admission into evidence of the United States Life Tables and Actuarial Tables 1939-41, prepared by the Chief, National Office of Vital Statistics, Federal Security Agency, United States Public Health Service, in order to establish the potential life expectancy of plaintiff. The life tables were necessarily bases on the 1940 census, as a similar publication by the Federal Security Agency based upon the 1950 census had not been compiled at time of trial.
Accredited life tables are admissible in actions for damages resulting in death or permanent impairment of earning power. In such a case the victim's expectancy of life is an important factor in the jury's calculations after it is determined that his injuries resulted solely from defendant's negligence, and after it is further determined that the injuries caused either his death or permanent impairment of his earning power. Littman v. Bell Tel. Co. of Pa., 315 Pa. 370, 172 A. 687.
Such a compilation of the Federal Security Agency is part of the 'business' of said agency, and hence is admissible under the Federal statute relating to admissibility of records made in the regular course of business. 28 U.S.C.A. 1732; Moran v. Pittsburg Des Moines Steel Co., 3 Cir., 183 F.2d 467.
I can see no merit in defendant's assertion that the court erred on its instruction as to the duty of a railroad to maintain a public crossing. The principles of law enunciated in respect thereto were based verbatim upon the authority of the Supreme Court of Pennsylvania. Reed v. Allegheny County, 330 Pa. 330, 199 A. 187; Culver v. Lehigh Valley Transit Company, 322 Pa. 503, 186 A. 70.
The verdict of the jury should be set aside only if so grossly unreasonable as to shock the conscience of the court, or if it clearly manifests that the verdict was a result of mistake, caprice, prejudice or other improper motive, and not merely because the judge, had he tried the case without a jury, would have made a different award. Foresman v. Pepin, D.C. 71 F.Supp. 772, affirmed, 3 Cir., 161 F.2d 872.
I am satisfied that the award was commensurate with the degree of injury and disability evidenced in the record.
Motion for judgment notwithstanding the verdict and motion for new trial are refused.
An appropriate order is hereby entered.