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WELLS v. READING CO.

January 26, 1956

Julius WELLS
v.
READING COMPANY



The opinion of the court was delivered by: DUSEN

This case comes before the court on plaintiff's motion for new trial after entry of judgment for the plaintiff in the amount of $ 2,500 on the special verdict of the jury. *fn1"

The testimony offered during the fourday trial of this suit under the Federal Employers' Liability Act, 45 U.S.C.A. 51 et seq., among other things, disclosed the following:

 A. Plaintiff was the fireman-helper on a large, double-unit, diesel, railroad engine (approximately 109 feet long) used on defendant's fast passenger train, 'The Crusader.' This engine, to which no cars had yet been attached, was being moved backwards *fn2" on the 'hill track' about 12:30 P.M. on August 13, 1952, from a fueling and servicing area at 9th and Green Streets, in an easterly direction, preparatory to its being taken westward by a cross-over track onto a main westward track leading into the Reading Terminal (see Exhibit P-1. The engine was required to move backwards far enough east on the hill track so that the engineer located in the cab at the western end of the train could see a dwarf signal (marked '2' on Exhibit P-1) located to the north of that track and facing east, which signal indicated the position of the switch leading to the cross-over track. The distance between this signal and the bumper block at the east end of the hill track was approximately 370 feet (see diagram marked Exhibit P-1).

 B. At the time plaintiff's engine was being moved eastward on and along the hill track, there was another double engine (approximately 112 feet long) which was standing on that track with its west end about 150 feet from the above-mentioned dwarf signal. As plaintiff's engine was about to come to a stop, it collided *fn3" with this standing, double engine (hereinafter called '400 type engine') causing the injuries for which the suit was brought. The east end of this 400 type engine was approximately 109 feet from the bumper block at the east end of the hill track.

 C. As was customary in this move eastward and along the hill track, plaintiff was stationed in the east end of his double engine so that he could watch for another dwarf signal (labeled '1' on Exhibit P-1) south of the hill track and west of the above-mentioned dwarf signal and so that, in case of emergency, he could warn the engineer by a warning bell or stop the train by emergency brake which was available to him in his position in the cab at the east end and south side of the train. Plaintiff testified that he left his position at the east end of this engine when it slowed down and the east end of this engine had reached a certain point in relation to a mark on the fence north of the hill track, at which point, he knew from experience, the west end of the engine was about 6 or 8 feet east of the dwarf signal. Plaintiff testified this was where his engineer (Mr. O'Grady) stopped every day so that, when he reached this point *fn4" and was still moving, he started to go back, sliding sideways through a narrow passageway in the engine, to the west end of the engine, where he was required to be stationed on the move west to the Reading Terminal. Plaintiff and two other engineers called by plaintiff indicated that the practice of defendant's engineers was not to move the west end of their engines more than 5 feet east of the dwarf signal in making this move. *fn5"

 Mr. O'Grady testified that he thought the engines were back near the bumper block (within 10 feet of that block) *fn8" and he had plenty of room to continue backing (N.T. 317) as he allowed the west end of his engine to 'drift' eastward, with power off, past the dwarf signal at two miles per hour an extra half revolution of the engine's crankshaft in order to make sure there was no 'knock' in the engine (N.T. 320).

 Plaintiff had also testified that the 400 type engine was 'right close to the block' *fn9" when first asked about its location (N.T. 53-55). As a result of further cross-examination, he testified later that he could not tell how far this engine was from the block but that it was 'close to the block' (N.T. 65). *fn10" On the redirect examination, he testified that he did not know how far the east end of this engine was from the block. *fn11"

  With this testimony in the record, counsel gave closing speeches to the jury which discussed much of the evidence as part of their arguments. Counsel for plaintiff emphasized in his closing speech that the liability of the defendant was due to the fault of Mr. O'Grady, the engineer. *fn12" As part of this emphasis he read to the jury portions of the transcribed testimony of Mr. O'Grady (N.T. 388). Also, plaintiff's counsel argued that, since Mr. O'Grady testified that he thought the 400 type engine was close to the bumper block but could not be sure of this, he should have been 'doubly careful' (N.T. 381). Neither counsel pointed out in their closing speeches that plaintiff himself had testified that he thought these engines were 'right close' to the bumper block but plaintiff's counsel stated to the jury, in relation to plaintiff's testimony as to the distance of the 400 type engine from this block, that plaintiff was asked 'a great many involved and complicated questions' so that he 'finally was driven to the point where he said the only truthful thing he could say, 'I don't know" (N.T. 408).

 In order to make sure that the jury, in arriving at a just and true verdict, considered what the trial judge believed to be very relevant testimony (given on the morning of the first day of the four-day trial *fn13" and not mentioned in the closing statements of counsel) concerning the reasonableness or unreasonableness of Mr. O'Grady's action in allowing the west end of his engine to drift more than forty feet past the dwarf signal in order to listen for a knock in his engine, the charge included the following language (N.T. 425-428):

 'Again I advise you that it is your memory of the facts which controls, but my memory of the facts as testified to is that if the 900 type double engine which Mr. O'Grady was driving had stopped within approximately 41 feet of the No. 2 dwarf signal, there would have been no collision. You will have to decide whether Mr. O'Grady failed to act as a reasonable man, properly considerate of the safety of others, would do in not stopping his locomotive within that distance under all the circumstances of this case.

 'One of the circumstances is the question whether Mr. O'Grady was reasonable in his thought that the standing engines were back near the bumper block. If this was a reasonable belief for a person with the view eastward; that is, the direction in which the engine was going, that Mr. O'Grady had, there was apparently plenty of space to allow his engine to drift that extra half revolution at two miles per hour.

 'Now, one factor in determining whether this was a reasonable belief for Mr. O'Grady is the very positive testimony of Julius Wells, the plaintiff, that the engines were, and I am quoting the words of Mr. Wells, 'right close to the bumper block.' Mr. Wells gave this positive testimony the first time he was asked about the matter on cross-examination, at pages 53 and 54 of the typewritten notes of testimony.

 'Since Mr. Wells' testimony covers more than 100 pages of these notes of testimony, it would be reasonable for you to find that this testimony which he gave near the beginning of his cross-examination and approximately midway during the period that he was on the stand is not subject to the argument that he had been confused by innumerable ...


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