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March 27, 1957

Michele DESSI, Plaintiff,

The opinion of the court was delivered by: BARKSDALE

This action came on for trial with a jury on November 27, 1956, and when plaintiff had concluded his testimony, and again at the conclusion of all testimony, defendant moved for a directed verdict in its favor, upon the grounds that plaintiff had failed to prove negligence on the part of the defendant and that, even if there was proof of negligence, there was no proof that any negligence on the part of the defendant was a proximate cause of plaintiff's injury. These motions being overruled and exceptions being taken to the court's ruling, the issues were submitted to the jury, which returned a verdict in favor of the plaintiff and judgment was entered thereon. The case is now before the court upon defendant's timely motions, for a new trial, and that the jury's verdict and judgment entered thereon be set aside and that judgment be rendered in favor of the defendant notwithstanding the jury's verdict.

This action, brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., grew out of an injury sustained by plaintiff on November 25, 1953, on the yard of defendant's car repair shops at Altoona, Pennsylvania. At that time, plaintiff was, and had been for many years, employed by defendant in these shops. At that time, he was a mechanic engaged in repairing cars and had a helper. On the Altoona yard, besides the large car shop, there were at least five tracks on which car repair work was done, and also a storehouse track, and a paint track, the primary purpose of which was for the location of cars for painting. On this particular morning, shortly after 8:00 o'clock, plaintiff was directed by his gang foreman to go with his helper to the paint track and replace a wedge in a journal box of a freight car located on the paint track. To replace wedges, it is necessary to jack up a corner of the car a matter of inches so as to take the weight off the wedge in place at the top of the journal box. The metal wedge is slightly less than one inch in thickness. This empty car weighed from 26 to 28 tons and was coupled at each end to other empty cars. Plaintiff used the 15-ton jack, which had been assigned for his exclusive use for several years and which admittedly had been working perfectly up until that morning. Plaintiff and his helper placed the jack on a wooden block on the ground and jacked up the corner of the car a sufficient distance to permit the replacement of the wedge. Plaintiff then said to his helper, 'Okay. Push that wedge in and don't let it fall down on the ground.' Almost immediately thereafter, plaintiff fell to the ground, momentarily unconscious, with a contusion to the left rear of his head. Neither plaintiff, nor his helper, nor his gang foreman, saw or knew what struck the plaintiff. In a statement given by plaintiff to his foreman at 12:45 P.M., that day, he stated that at the time of the injury,

 'I am positive that the jack handle was out of the jack.'

 When asked to give his idea of what occurred to cause his injury he stated,

 'The only thing that I can think of is that I probably struck my head on the bolster jacking post on the South side of this c-27 car.'

 In the trial of the case, the gang foreman and the helper testified that they did not see anything strike plaintiff and did not see him fall. They heard nothing and the jack was still in place after the accident. However, plaintiff testified at the trial that he believed he was trying to get the handle out of the jack and was knocked unconscious.

 It is impossible to tell from the complaint what negligence plaintiff relied on. All but the last two paragraphs of the complaint seems to be a form, broad and general enough to be used in any FELA case, with the names and residences of the parties and the amount sued for filled in, with the general allegation that the accident was caused solely and exclusively by the negligence of the defendant. The only allegation of the complaint pertaining specifically to this accident is as follows:

 '12. On or about November 25, 1953, at or about 8:45 A.M., and for a long time prior thereto, the plaintiff was employed by the defendant as a car repairman at its westbound Repair Shop of the Altoona Yards, in Altoona, Pennsylvania, on which date while engaged in repairing a car with a jack, a jack handle did fly out and strike the plaintiff, as a result of which plaintiff suffered severe, painful and permanent injuries more particularly hereinafter set forth.'

 At the conclusion of the evidence, I was of the opinion that there was sufficient proof of negligence to go to the jury, so charged the jury that it was the duty of the defendant to exercise reasonable care to provide plaintiff with a safe place to work, and that plaintiff had introduced evidence tending to prove certain breaches of this duty, namely,

 'That the paint track was an unsafe location upon which to jack up that portion of the box car which he was supposed to jack up. Of course the Defendant was charged with notice of this fact.

 'That the jack he was using was not large enough for this job, and that two or possibly three jacks should have been used instead of one.'

 To establish negligence, plaintiff called two witnesses. At the time of the injury, one of them was Divisional Chairman of the plaintiff's Union, and the other one was Shop Committeeman. Both had had years of experience in the car repair shops and testified as experts, neither of them having any firsthand knowledge of this particular accident. Defendant's evidence negatived negligence in any of these particulars.

 Although I am still of the opinion that plaintiff's evidence of negligence was probably sufficient to go to the jury, upon careful consideration I am satisfied that there is absolutely no evidence to show that plaintiff's injury ...

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