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CONRY v. BALTIMORE & O.R. CO.

May 25, 1953

CONRY
v.
BALTIMORE & O.R. CO.



The opinion of the court was delivered by: GOURLEY

This is a retrial on a claim for damages based on negligence. The jury returned a verdict in favor of the plaintiff and against the defendant in the amount of $ 45,000.

In connection therewith interrogatories were submitted on the subject of negligence, and all answers affirmed the guilt of defendant. *fn1"

 Defendant has filed motions for judgment notwithstanding the verdict and a new trial.

 Since this proceeding has been pending before the court for over five years, and the issues of law have been dealt with most exhaustively at the conclusion of the original trial upon similar motions, and were further reviewed and re-examined at pretrial conferences at the inception of and during the present proceeding, as well as by detailed opinion of the United States Court of Appeals for the Third Circuit, 195 F.2d 120, remanding the same for new trial, no useful purpose could be served by holding oral argument hereon. In order to expedite the business of this court, pursuant to Rule 78 of the Federal Rules of Civil Procedure, 28 U.S.C.A., I have directed that oral argument be waived and that the determination of said motions be made upon written briefs.

 Plaintiff is a resident of Pennsylvania, and the defendant a Maryland corporation. The accident occurred in Pennsylvania. 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. Pittsburg 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.

 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. 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.

 Pursuant to Rule 50 of the Federal Rules of Civil Procedure, 28 U.S.C.A., defendant submitted motion for directed verdict during trial, and motion for judgment notwithstanding the verdict after trial.

 Motion for Judgment N.O.V.

 One of the primary contentions which defendant posed was lack of federal jurisdiction. Federal jurisdiction was based solely on diversity of citizenship. The action was premised on the theory that the Baltimore and Ohio Railroad Company of Maryland was legally responsible for the negligence alleged.

 If defendant's contention were sustainable, and were the Baltimore and Ohio Railroad Corporation of Pennsylvania a distinct and separate operating corporation from the Baltimore and Ohio Railroad Corporation of Maryland, no diversity of citizenship would exist upon which to base federal jurisdiction.

 In addition, throughout this proceeding the Court was cognizant of the rule of law that where one railroad company actually controls another and operated both as a single system, the dominant company will be liable for damages due to liability incurred by the subsidiary company. Davis, Agent v. Alexander, 269 U.S. 114, 46 S. Ct. 34, 70 L. Ed. 186; Erie R. Co. v. Krysienski, 2 Cir., 238 F. 142, 143, 145. This principle of law, subsequent to this trial, was given added emphasis in Southern Ry. Co. v Crosby, 4 Cir., 201 F.2d 878, when the court specifically alluded to liability for injuries.

 A crucial question had therefore arisen for both the court and jury as to the relationship existing between the two corporations. It was my judgment that neither plaintiff nor defendant had submitted evidence from which either the court or jury could adduce the nature of this relationship. Even upon the court acting on its own volition in subpoenaing the chief engineer of the Baltimore & Ohio Railroad, no additional information could be elicited which might clarify the issue. Wigmore on Evidence, Third Ed., Sec. 2195.

 In view of the indefiniteness of witnesses and in an effort to see that justice was done, I took judicial knowledge of the Act of Congress requiring carriers to file annual, periodical reports with the ...


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