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PICARD v. PITTSBURGH & OHIO VALLEY RY. CO.

July 3, 1957

Elmer E. PICARD, Plaintiff,
v.
PITTSBURGH & OHIO VALLEY RAILWAY COMPANY, a corporation, Defendant



The opinion of the court was delivered by: GOURLEY

This is an action under the Safety Appliance Act to recover damages for injuries sustained while plaintiff was employed as a brakeman for the Pittsburgh and Ohio Valley Railway Company, 45 U.S.C.A. §§ 9 and 11.

Upon jury trial verdict was returned in favor of plaintiff in the amount of $ 75,000, and the jury, in answer to specific interrogatories, found defendant guilty of violating the Safety Appliance Acts which in each instance was a substantial contributing factor in bringing about the accident. *fn1"

 The matter before the court relates to defendant's motion for new trial in which it is contended that the verdict is against the evidence and law; that the court erred in its charge by failing to charge that plaintiff's own conduct could have been the sole proximate cause of the accident; that the trial judge followed a pattern of conduct and applied individual technical rules which were prejudicial and burdensome to defendant both in the pre-trial conference and during trial; that plaintiff's counsel presented an improper argument to the jury and that the verdict was excessive and was based on passion and prejudice.

 In considering the testimony and inferences to be drawn therefrom in a light most favorable to the plaintiff, it appears that plaintiff brakeman was applying the handbrake of a heavily loaded flatcar in defendant's moving train, when he was violently thrown from the car to the ground. Suit was brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. on the theory of negligence and under the Safety Appliance Act alleging an inefficient handbrake and that the train was operated without eighty-five percent of its cars being coupled with air.

 In the pleadings a originally filed, at pre-trial and during presentment of plaintiff's case, proof was offered to establish two separate and distinct violations of the Safety Appliance Act and negligence under the Federal Employers' Liability Act. However, at the close of testimony, plaintiff elected to proceed solely on the two alleged violations of the Safety Appliance Act, and in view thereof, the cause of action under the Federal Employers' Liability Act based solely on negligence was withdrawn from the consideration of the jury.

 Such procedure is proper and in accordance with the law of this Circuit. McCarthy v. American Eastern Corporation, 3 Cir., 175 F.2d 724; German v. Carnegie-Illinois Steel Corporation, 3 Cir., 156 F.2d 977.

 1. Is the Verdict against the Evidence and the law?

 Defendant advances the proposition that the weight of the evidence established that plaintiff's conduct was the sole proximate cause of the accident by his alleged violation of a company rule providing that no hand brakes were to be applied while proceeding down hill without an advance signal from the engineer.

 The rule to which defendant adverts, at most, relates to the issue of possible contributory negligence on the part of the plaintiff.

 Since the action is grounded upon violation of the Safety Appliance Acts, the issue of contributory negligence is ruled out of the proceeding. Carter v. Atlanta & St. Andrews Bay Ry. Co., 338 U.S. 430, 70 S. Ct. 226, 94 L. Ed. 236.

 Upon a most intensive review of the charge, I cannot but help conclude that adequate allowance was made for the jury, if it saw fit, to find sole responsibility with the plaintiff, when the court emphasized the requirement that the violation of the Safety Appliance Acts must have been a substantial contributing cause of the accident before plaintiff would be permitted to recover.

 It would, indeed, constitute a usurpation of the jury's prerogatives, for the court to conclude to the contrary when defendant itself conceded that air was not coupled through the train and in the light of the jury's specific findings on violation of the Safety Appliance Acts and their proximate causation to the plaintiff's injuries.

 2. Did the Court Err in Its Charge by Failing to Charge that Plaintiff's Own Conduct Could Have Been the Sole Proximate Cause of the Accident?

 The court in its charge to the jury emphasized repeatedly that recovery could be had if and only if the violation of the Safety Appliance Act by the defendant was a substantial contributing cause of the accident. *fn2"

 The interrogatories submitted to the jury asked whether or not the failure to use air and/or the failure to provide an efficient hand brake was 'a substantial contributing proximate cause of the accident.' The terms ...


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