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July 28, 1955

Pearl Elizabeth THOMAS, Administratrix of the Estate of Lewis Samuel Thomas, deceased, Plaintiff,

The opinion of the court was delivered by: GOURLEY

This is a claim for damages resulting from 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 Eighty Thousand Dollars ($ 80,000.00). The surviving wife and seven minor children suffered pecuniary loss as a result of the most unfortunate death. *fn1"

 In answer to specific interrogatories, the jury found the total amount of damages to be $ 100,000.00 but attributed twenty per cent of the negligence which was the proximate cause of the accident to the decedent. *fn2"

 The matters before the court are two-fold:

 (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

 The cause of action arose out of an unusual accident. Decedent, employed as a skip hoist operator, was found at the bottom of a pit under a steel bucket which constituted part of the skip hoist equipment, which mechanism was utilized in the servicing of defendant's locomotives. Sand is received from hopper cars and is conveyed from a pit beneath the hopper cars by the hoist bucket to the storage bin. From this bin it is dispensed to locomotives.

 The duties of the hoist attendant are primarily to transfer sand from the hopper cars to the storage bin by the operation of the skip hoist which, fundamentally, is a bucket which ascends from the pit beneath the hopper car to the storage bin at the top of the structure and then descends again to the pit. The skip hoist apparatus which causes the bucket to function in this manner is electrically operated and controlled by means of electrical switches and buttons.

 The bucket ascends and descends in a vertical line and is suspended from a cable. There are two sets of controls, one inside a shed and one outside on the wall of the shed adjacent to the pit. The bucket is designed to travel along an oblique path on rails to a point some fifteen feet under a set of railroad tracks where it trips a mechanism opening a hopper door and is filled with sand. The filling process takes about five seconds.

 This bucket can be operated automatically by pushing the 'On' button and the 'Hoist' button inside the shed. It can be stopped anywhere in its path by pushing another button called the 'Safe' button. At such time as the machine is on automatic operation, it may be controlled by use of the outside switch to the following extent: Assuming the button on the outside switch remains in an out position, the machine continues to operate automatically until the current is completely shut off on the inside control or by depressing the button on the outside and turning it in a clockwise position. The bucket will continue to operate until it comes to rest in the bottom of the pit for reloading, and will stop and remain stopped until the button on the outside switch is released. In short, by depressing the outside button and locking it by turning it clockwise, the bucket will make one cycle and come to rest at the bottom of the pit and will remain stopped.

 Decedent, in the performance of his duties, was required at infrequent intervals to descend into the pit to remove spilled sand from the floor of the pit and to grease guide rails which engage the wheels of the bucket and the gate or door beneath the hopper car which is opened and closed automatically by the bucket.

 Plaintiff advanced three distinct theories from which anyone, or all, or a combination of more than one, the negligence of the defendant might be premised.

 Theory No. 1

 That after decedent or another had depressed the outside push button and the hoist bucket was stopped, and decedent had descended into the hoist pit in the performance of his duties, vibration from surrounding blast furnaces, a cindering plant, and railroad movements caused the push button to spring out re-energizing the hoist machinery, causing the bucket to come down upon the decedent.

 In support of this theory, plaintiff offered expert testimony of engineers to establish the defective condition of the outside switch. Their testimony developed the fact that the outside switch was composed of a button one inch in diameter and about 1 1/2 inches in length and contained a slot about 3/4 or one inch from the outside surface of the button. This slot when depressed and turned was supposed to come to rest on a metal lip in the frame of the switch, thereby guaranteeing to keep it locked in a depressed position. This switch in the skip hoist was defective in that the button was not designated to the particular switch, and if the button was so designed, then the cover upon which it was to lock itself was not the proper mate. The button was worn so that when depressed it was almost impossible to turn the button clockwise. Further, the button was worn to a degree that the notch in the button could not fit itself on the metal case. Friction, and friction alone, would hold the button in a depressed position. No safeguard or locking device was present that would insure the button remaining in a depressed position.

 Theory No. 2

 Defendant failed to provide and maintain a reasonably safe place for decedent to work which was a proximate cause of his death.

 Theory No. 3

 That decedent's locale for the performance of his work was a restricted area, and that other employees, not specifically assigned to the hoist machine, had operated the machine on previous occasions and were familiar with its operation. That decedent descended into the pit in the course of his employment and that, thereafter, while the deceased was in the hoist pit, a third person energized the electrical controls and set the bucket in operation.

 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 a 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 is not free to re-weigh 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. Tenant 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; Lavender v. Kurn, 327 U.S. 645, 66 S. Ct. 740, 90 L. Ed. 916.

 There was ample evidence to require submission to the jury the question of whether or not decedent met his death as a result of one, two, or the combination of all of the theories which plaintiff advanced.

 The plaintiff produced evidence which supported her allegations of negligence and also showed by evidence which, if believed, together with the inferences which might reasonably be drawn therefrom, that the accident which occurred resulted from the negligence alleged. Nor is the plaintiff under a duty to exclude all causes except the one relied upon. In the instant case, based almost entirely upon circumstantial evidence, proof to a degree of absolute certainty is rarely attainable; it is sufficient if proof is such as to satisfy a reasonable mind; the law does not require the elimination of every possible cause of the accident other than that on which the plaintiff relies, but only such other causes, if any, as fairly arise from the evidence. The testimony need not exclude everything which the ingenuity of counsel may suggest as having possibly caused or contributed to the accident. Moran v. Pittsburgh-Des Moines Steel Co., 3 Cir., 166 F.2d 908; Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517; Kotal v. Goldberg, 375 Pa. 397, 100 A.2d 630.

 In circumstantial cases under the Federal Employees' Liability Act the domain of the jury may not be narrowly bounded and the settling of any question of negligence or proximate cause, where more than one rational possibility is invoked on the evidentiary facts is exclusively within ...

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