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CONSTENTINE v. ALIQUIPPA & S. R.R. CO.

August 29, 1956

Frank J. CONSTENTINE, Plaintiff,
v.
ALIQUIPPA & SOUTHERN RAILROAD COMPANY, a corporation, Defendants



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 trackman for Aliquippa and Southern Railroad Company. 45 U.S.C.A. ยง 51 et seq.

Upon jury trial verdict was returned in favor of plaintiff in the amount of $ 55,000. *fn1"

 (1) The verdict is against the weight of the evidence.

 (2) The verdict is arbitrary and capricious.

 (3) The verdict is excessive.

 The facts of the accident on which this case is based are relatively simple.

 On April 19, 1952, plaintiff and seven other laborers comprised a track gang which was assigned to work on the No. 31 track of the defendant Company. The plaintiff and five other members of his crew were directed by their foreman to move a thirty-three foot rail, weighing approximately 1,232 pounds, located in the six-foot between No. 31 track and an adjoining track. Between the rail and No. 31 track was located a pile of earth which had been excavated from the portion of No. 31 track being repaired.

 In order to lift such a rail, it is customary to use rail tongs resembling an ice-pick with long handles. Three men positioned themselves on each side of the front end of the rail, plaintiff being the third man from the front end of the rail on his side. As the men moved the rail, the plaintiff was required, while lifting, to walk over the pile of dirt between the track and No. 31 track. The dirt gave way and he fell backwards in a twisting motion.

 The evidence adduced that normally a crane is provided to a crew performing heavy work in the nature of moving a track, or that when such rail is moved by hand, ten to twelve men are utilized.

 Liability was premised upon defendant's failure to provide an adequate number of employees to do the work to which plaintiff was assigned, constituting a failure upon defendant's part to provide plaintiff with a safe place to work.

 Defendant advances the proposition that the cause of the accident was not the lack of manpower but the giving way of loose dirt. That the presence of this dirt at the point where the rail was being moved way not asserted by the plaintiff as an act of negligence, and that the verdict in favor of the plaintiff has no basis in law or in the evidence since the asserted basis of liability was not the reason ascribed by the plaintiff at the trial for the accident.

 It is undisputed that the rail which plaintiff and five other employees were directed to move weighed slightly over 1,200 pounds, necessarily requiring each man to lift a weight of at least 200 pounds. Ample testimony was introduced from which the jury could conclude ten to twelve men were customarily required to lift such a rail.

 The evidence produced further established that the pile of earth over which the plaintiff and his fellow employees had to pass was approximately two to three feet high. While it was not contended that the mere existence of this pile of earth was negligence on the part of the defendant, it was amply demonstrated that this pile of earth was a circumstance of negligence which was inextricably interwoven with the failure to provide sufficient employees to do the work involved. That the pile of dirt over which the plaintiff had to pass was a circumstance of negligence which obviously made the plaintiff's already difficult task more difficult and was a ...


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