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December 12, 1955

James M. LOVEJOY, Plaintiff,

The opinion of the court was delivered by: GOURLEY

This is an action under the Federal Employers' Liability Act to recover damages for injuries sustained while plaintiff was employed as a brakeman for the Monongahela Connecting Railroad Company. 45 U.S.C.A. ┬ž 51 et seq.

Upon jury trial, a verdict was returned in favor of plaintiff in the amount of $ 44,950.

 In answer to specific interrogatories, the jury found the total amount of damages to be $ 77,500 but attributed 42 per cent of the negligence which was a proximate cause of the accident to the plaintiff. *fn1"

 (1) Defendant's motion to set aside the verdict or for judgment notwithstanding the verdict.

 (2) Defendant's motion for new trial.

 (3) Plaintiff's motion for new trial limited to issue of contributory negligence.

 Motion to Set Aside the Verdict or for Judgment Notwithstanding the Verdict

 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, and that plaintiff's own conduct was the sole proximate cause of the accident.

 On the night of the accident, it appears that plaintiff was working as a brakeman in a crew engaged in moving thirty-two cars loaded with ore from an area known as O. B. Yard on defendant's property to the 34th Street Yard. On arriving at 34th Street, the engine and the cars stopped west of a switch leading to a track known as the 'New Track'. The 'New Track' is parallel to the Main Track and is the first track immediately north of the Main Track. To the south of the Main Track is another parallel track known as No. 1 Lead and a switch leading from the Main Track to No. 1 Lead located east of the switch where the locomotive had stopped.

 The Main Track continues eastwardly into the 34th Street area where it is known as the Middle Lead. A switch leads from the Middle Lead in a northwesterly direction to certain storage tracks where cars loaded with iron ore are stored. The conductor and the plaintiff left the train at this point and proceeded to the 34th Street Yard Office for instructions as to placement of the cars. The plaintiff heard the yardmaster instruct the conductor to take the cars ahead to the Middle Lead and to prepare to shove or reverse the move into the ore yard. The plaintiff left the Yard Office and proceeded to line the switches on the Middle Lead so that the train could proceed into the ore yard. As was the custom of his crew, plaintiff did not line the target switch leading from the Main Track to No. 1 Lead, for this was always done by the conductor after he had instructed the engineer to which position the train was destined.

 It is undisputed that the target switch leading from Main Track to No. 1 Lead was yellow to the engineer. Under such circumstances if the move proceeded ahead on the yellow, it would be required to go down the No. 1 Lead. It is further undisputed that the Middle Lead was the track normally used to move cars into the ore yard, and the No. 1 Lead was never used for this type of movement. After plaintiff lined the switches as required, he placed himself between the Middle Lead and No. 1 Lead, and passed a signal to an employee standing in the vicinity of his engine, and whom he presumed was his conductor. This signal was given in order to inform the conductor and engineer that the plaintiff was ready for the movement provided they were ready to proceed. The signal was not returned and the plaintiff directed his attention to a crossing some hundred feet to the east. While watching the crossing, plaintiff was struck by his own engine which had proceeded ahead without giving any warning and was traveling down No. 1 Lead. The testimony of all the crew members was to the effect that the move was on the wrong track. The evidence further established that the conductor was still in the Yard Office getting instruction when the accident happened. The conductor was unaware that the train had moved until after the accident occurred.

 The evidence elicited in connection with Company rules established that the engineer is obliged to take his orders from the conductor, and may not move his engine in a transfer movement, without receiving such orders, and that the engineer must make certain that the switches immediately ahead of him are lined correctly for the destination of the train.

 Motion for a directed verdict or judgment notwithstanding the verdict under the Federal Rules of Civil Procedure, rule 50, 28 U.S.C. 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 ...

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