and distinct stops before moving his vehicle onto the crossing. Counsel for the defendant immediately moved that the testimony concerning the second stop be stricken from the record on the basis that it was at variance with the statements made by plaintiff's counsel at the pre-trial conference.
In this connection, I desire to preface my remarks with the statement I have steadfastly adhered to the inviolability of the pre-trial conference, and that I have always believed that a strict adherence to the case, as it is presented at pre-trial, is essential to the expeditious administration of justice. To now eliminate the possibility of mistaken or inaccurate information from being presented at pre-trial, I have directed that actual trial counsel together with his client must appear at pre-trial conference, and any change or deviation from representations at pre-trial can only be made by petition to the court with appropriate notice to adversary counsel.
Confronted with the variance in plaintiff's testimony from associate counsel's representation as to the number of stops plaintiff made before committing himself to the crossing, the court offered to permit defense counsel a full week's recess at the conclusion of plaintiff's case, in order to meet the variance in proof. The court permitted counsel for the defendant to read certain portions of the pre-trial record to the jury as well as a letter addressed to defense counsel, which was written by plaintiff's associate counsel. Counsel for the defendant was permitted to argue the credibility of the plaintiff and his counsel to the jury on the basis of the variance in the pre-trial and the proof.
At the conclusion of the plaintiff's case, the court renewed its offer to defense counsel an opportunity for such additional time as defendant might need to meet the variance.
Considering that the court advised the jury of the significance and nature of pre-trial, and that the statements of associate counsel both at pre-trial and through written communication to defendant could be considered by the jury in evaluating the credibility of plaintiff's testimony, and further considering that the court allowed defendant ample opportunity to conduct further investigation to secure any additional information which might be needed to rebut the variance in plaintiff's position, I do not believe that defendant suffered any material prejudice. Defense counsel at argument stated that he was perfectly satisfied with the opportunity afforded him to meet the variance, and, in fact, failed to request the withdrawal of a juror during trial. Nor could he state whether he would, in any way change the defense as presented, were the case retried. I must conclude that defendant's contention is without merit.
(b) Defendant contends that the court's action toward defendant's counsel during trial was prejudicial to defendant's cause because on two occasions the court left the bench under circumstances which constituted an affront to defendant's counsel.
The court as a matter of general practice has pursued the policy of leaving the bench when one counsel or the other, by reason of uncontrollable emotion or in the zeal of his advocacy, fails to abide by the elementary rules of courtroom decorum and courtesy. In a case as prolonged and hard fought as the instant proceeding, the record will disclose reprimands and cautionary remarks directed at both of the able counsel. I am satisfied that, viewing the proceeding as a whole, defendant counsel was afforded every courtesy and fair treatment consistent with equal justice under the law.
(c) Defendant urges that the court committed fundamental error in allegedly submitting the case to the jury upon the basis that they could find negligence on the part of defendant in not getting the train under control after discovering plaintiff on the tracks.
A careful reading of the court's charge will disclose that the court merely instructed the jury that the defendant's actions after it discovered plaintiff on its tracks, if such discovery had been made in the light of the evidence submitted, was a factor to be considered together with all the other evidence, in the determination of negligence.
(d) Initially, defendant contended that the fact that the court charged that defendant had a duty to maintain a public crossing in a reasonably safe condition constituted reversible error.
In this connection, the charge was premised upon Pennsylvania Statute enacted in 1837 which applied to the Pittsburgh and Connellsville Railroad Company of which the defendant corporation admittedly is its successor. At time of argument, defendant counsel was referred to said statute
and withdrew objection to this phase of the charge.
(e) Defendant's argument that a new trial should be granted where the verdict is based on false testimony merely repeats the proposition of the variance between the representations of associate counsel at pre-trial and the testimony of plaintiff at trial.
The variance between the pre-trial and the proof was fully explained to the jury, and defense counsel was given permission to comment thereon in his closing address to an unlimited degree. He was further given the opportunity to cross-examine the attorney whose statements were in question.
Upon careful scrutiny of testimony elicited from plaintiff's witnesses, I am satisfied that it is consistent, coherent and logically sound, and indeed, creates such inferences from which the jury could have reasonably concluded the negligent conduct of defendant and freedom from contributory negligence of the plaintiff. To summarily expunge this testimony, and substitute the personal opinion of the court, would do violence to the processes and purport of the jury trial.
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 defendant which caused the injury, and freedom from contributory negligence on the part of the plaintiff, 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. Thomas v. Conemaugh & Black Lick R. Co., 3 Cir., 234 F.2d 429.
(f) Counsel for defendant contends that the verdict was contrary to the evidence in that it was excessive. The extent of trauma experienced by plaintiff is glaringly illustrated by the fact police authorities investigated the case as a fatality. Beside a fractured skull and brain damage with residuals of headaches and dizziness, plaintiff sustained fracture of the right arm, and compound comminuted fractures of the right tibia and fibula. In spite of the insertion of an intramedullary wire or nail down the entire lower portion of the leg, and attempted bone grafts from other portions of the body, no union has been obtained, and plaintiff is required to employ crutches for support. The tibia has developed osteomyelitis accompanied by constant drainage and throwing off of dead tissue. Additional surgery is indicated with the possibility of ultimate amputation.
Plaintiff had incurred medical expenses in the amount of $ 8,554.89 to date of trial with anticipated additional bills for $ 2,033.50. He had lost $ 13,395.24 in wages to date of trial. Recognizing that plaintiff had a life expectancy of 40.6 years, being permanently and totally disabled, experiencing a loss in wages of approximately $ 4,300 per year, and having endured excruciating pain and surgery of a most gruesome and pathetic nature with a bleak and guarded prognosis, it is my considered judgment that an award of $ 129,500 is reasonable and consistent with the evidence adduced at trial.
Upon most thorough review and recapitulation of all the credible evidence, I am convinced that the quantum of proof is such as to sustain the verdict of the jury both as to liability and damages.
Upon re-examination of the whole record and the charge of the court, I am satisfied the award was consistent with the law and facts.
Motion to set aside the verdict or for judgment notwithstanding the verdict, and/or new trial will be refused.
An appropriate order is entered.