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December 8, 1953

PATTON et al.

The opinion of the court was delivered by: MARSH

This was a wrongful death and survival action brought by Eva Marie Patton as administratrix of the estate of John B. Patton, deceased, and as trustee ad litem for herself and for the five minor Patton children, against the Baltimore and Ohio Railroad Company, a Delaware corporation. The railroad company filed a third-party complaint against the Duquesne Slag Products Company, a Pennsylvania corporation. The plaintiff is a citizen of Pennsylvania and a resident of the City of Pittsburgh, Allegheny County, and the court has jurisdiction by reason of diversity of citizenship and the jurisdictional amount.

On August 5, 1949, John Patton, an employee of the Duquesne Slag Products Company, was engaged in repairing one of a string of freight cars on the slag company's siding. At about 2:00 P.M. on the day in question four gondola cars belonging to the defendant railroad ran away from the place where they were being unloaded by employees of the slag company and collided with the line of cars upon which Patton was working. These cars were moved by the collision and Patton was killed instantly, his body being severed near the waist by a car wheel.

 This case came on for trial before our late brother, The Honorable Owen M. Burns, in February of 1951. At that trial verdict and judgment were entered for the plaintiff and against both defendants in the amount of $ 65,000, D.C., 99 F.Supp. 455. Appeals were taken and the Court of Appeals reversed and ordered a new trial, 3 Cir., 197 F.2d 732. The second trial took place in October of 1952 and resulted in two verdicts in favor of the plaintiff and against the railroad, and a verdict in favor of the third-party defendant and against the railroad. Judgment was entered in the wrongful death action in the sum of $ 113,000, and in the survival action in the sum of $ 20,000. Two days later, on October 26, 1952, Judge Burns died.

 The case is now before this court on application by the Baltimore and Ohio Railroad 'To Have Verdict And Judgment Set Aside As To It And To Have Judgment Entered In Accordance With Defendant's Motion For Dismissal And For a Directed Verdict And Motion For New Trial,' and 'To Have Verdict And Judgment Set Aside In Its Action Against The Third-Party Defendant, Duquesne Slag Products Company, And Motion For New Trial.'

 Among other reasons in support of the motion for a new trial, counsel for the railroad sets forth the following:

 'Inasmuch as the testimony presents many questions of credibility of witnesses, the legality of rulings made upon the admissibility or exclusion of evidence, and many rulings upon the competency of expert witnesses, on account of the death of the Honorable Judge Owen M. Burns on October 26, original defendant asks a new trial under the provisions of Rule 63 of the Federal Rules of Civil Procedure (28 U.S.C.A.).'

 Rule 63 provides:

 'If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.'

 At oral argument, in answer to a question of this court whether there was any difference between the two trials in respect to the evidence of negligence, counsel for the railroad stated:

 'I say in a large measure insofar as plaintiff's case is concerned it was the same. The difference in the testimony was on the part of the defendant; more testimony was produced.'

 Subsequently, in reply to a statement in plaintiff's brief that the same witnesses were used at both trials and that they testified to exactly the same set of circumstances in each, counsel for the railroad submitted to the court a list from which it appears that there were seven witnesses called by the plaintiff at the second trial who had not testified at the first trial and there were seven witnesses who testified at the first trial who were not called at the second. Consequently, we felt required to make a comparison of the testimony of the two trials. This effort has convinced us that the evidence on the part of the plaintiff in each trial was substantially the same, and for the most part the same witnesses were used in each trial. *fn1"

 We proceed then to examine the defendant's reasons for judgment n.o.v. and a new trial on their merits.

 In passing upon these motions the court must view the evidence in the light most favorable to the plaintiff; also, we have in mind that 'courts are not free to re-weigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.' Tennant v. Peoria & Pekin Union Ry. Co., 1944, 321 U.S. 29, 64 S. Ct. 409, 412, 88 L. Ed. 520.

 At both trials plaintiff's witnesses testified that the brakes on all Baltimore and Ohio gondola cars marked 'For Slag Service Only' were inefficient; that this defective condition of the brakes was common knowledge among the train crews of Monongahela Connecting Railroad who handled these cars daily; and that this condition had existed for a considerable period of time prior to the accident. *fn2" The testimony gave rise to a strong inference that the four runaway cars were part of a pool of B. & O. gondola cars marked 'For Slag Service Only' which made round trips between the Monongahela yards and the Duquesne tracks. Other witnesses for plaintiff testified that prior to the accident the brakes were properly set on the four runaway cars *fn3" and that these brakes were not released either intentionally or accidently in the unloading process. *fn4"

 The jury could properly have found that the railroad breached its 'duty of delivering its cars in reasonably safe condition; that the brakes on the four cars in question were inefficient; and that these defects were a proximate cause of the accident.' In addition, the jury could have found, as a concurring proximate cause, that the railroad failed to conduct a 'reasonably adequate ...

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