The opinion of the court was delivered by: GOURLEY
This proceeding involves a claim for damages pursuant to a death action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.
Upon jury trial, a verdict was returned in favor of plaintiff administratrix in the amount of $ 38,550.
In answer to specific interrogatories the jury found the total amount of damages to be $ 77,100 but attributed the negligence which was the proximate cause of the accident equally to plaintiff and defendant.
The matters before the Court for determination are twofold:
(1) Motion to set aside the verdict or for judgment notwithstanding the verdict.
(2) Motion for new trial.
Motion to Set Aside the Verdict or for Judgment Notwithstanding the Verdict
Plaintiff's case was premised upon the theory that while decedent was assisting in a switching operation, and while he was so engaged, he was caught by a car, and crushed between said car and an adjacent building. That the engineer of the approaching train failed to perform his duty in either blowing a whistle or sounding a bell. That defendant maintained a close area of clearance which presented a constant peril to the safety of employees, and that defendant failed to take any remedial action in spite of previous complaints from employee groups.
Defendant contends that there is no evidence in the record from which an inference of negligence on the part of the railroad can be drawn, or that if such negligence does exist, there is no basis to show that it was the proximate cause of the accident in whole or in part.
A motion for a directed verdict or judgment notwithstanding the verdict under the Federal Rules 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.
In passing upon a motion to set aside a verdict for plaintiff and to enter judgment for the defendant, evidence including all reasonable inferences to be drawn therefrom must be taken in the light most favorable to the plaintiff and all conflicts must be resolved in his favor. Waggaman v. General Finance Co. of Philadelphia, Pa., Inc., 3 Cir., 116 F.2d 254; Schad v. Twentieth Century-Fox Film Corp., 3 Cir., 136 F.2d 991; Lukon v. Pennsylvania R. Co., 3 Cir., 131 F.2d 327; Meyonberg v. Pennsylvania R. Co., 3 Cir., 165 F.2d 50; Kraus v. Reading Co., 3 Cir., 167 F.2d 313; O'Brien v. Public Service Taxi Co., 3 Cir., 178 F.2d 211.
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 man will honestly draw different conclusions from them, the question is not one of law but of fact to be settled by the ...