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HOSTETLER v. BALTIMORE & OHIO R.R. CO.

July 8, 1958.

Kenneth L. HOSTETLER, Plaintiff,
v.
BALTIMORE & OHIO RAILROAD COMPANY, a corporation, Defendant.



The opinion of the court was delivered by: MARSH

This action was commenced on February 20, 1958, in the Western District of Pennsylvania at Pittsburgh, Pennsylvania, by plaintiff, an employee of the defendant railroad, to recover for injuries pursuant to the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., Safety Appliance Acts, 45 U.S.C.A. § 1 et seq., and Boiler Inspection Acts, 45 U.S.C.A. § 22 et seq.

 The cause of action arose on April 7, 1957, at New Gate, near Hagerstown, in the District of Maryland where the action might have been brought.

 Defendant filed a timely motion to transfer venue to the United States District Court for the District of Maryland at Cumberland, Maryland, pursuant to § 1404(a), 28 U.S.C.A., which privides:

 "(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

 At argument and in his brief, plaintiff conceded the accuracy of the factual situation and distances set forth in the defendant's supporting affidavit and brief. The court requested amplification of the facts and defendant submitted two supplemental affidavits in support of the motion and plaintiff filed a counter-affidavit by his counsel.

 The court finds the undisputed and conceded facts as follows: The defense of the action is the responsibility of Western Maryland Railway Company under an agreement with the defendant, Baltimore & Ohio Railroad Company. A United States Courthouse for the District of Maryland is situate at Cumberland, Maryland; that the judges of that district regularly sit at Baltimore, Maryland, where the office of the Clerk and Marshal are located, but for the convenience of parties and witnesses, and in the interest of justice, a judge will sit at Cumberland.

 Plaintiff is a resident of Keyser, West Virginia, which is 136 miles from Pittsburgh, 26 miles from Cumberland, and 166 miles from Baltimore.

 The defense expects to call 8 employee-witnesses whose knowledge is relevant and material to the question of liability.

 Of these, three reside in Cumberland and five in or near Hagerstown, Maryland. Hagerstown is 178 miles from Pittsburgh, 68 miles from Cumberland, and approximately 72 miles from Baltimore. It is averred that plaintiff was examined by four doctors before suit was filed and is to be examined by a fifth. Of these, four are specialists who reside in Baltimore and one resides in Keyser, West Virginia. Baltimore is 250 miles from Pittsburgh and 140 miles from Cumberland. It is averred that all these medical witnesses are essential to the defense. Defendant estimates the cost of maintenance for its 13 witnesses at $234 per day in Pittsburgh contrasted with $99 per day in Cumberland, and travelling expenses of $184.92 to Pittsburgh contrasted with $150.46 to Cumberland. The plaintiff does not dispute the accuracy of these expenses or that Western Maryland Railroad will have to pay them. At Pittsburgh rates, maintenance would probably cost about $162 per day for 9 witnesses in Baltimore, and if passes would be available for the 8 employees, the travelling expenses would be considerably less than those to either Pittsburgh or Cumberland.

 No affidavit was filed by plaintiff with respect to the number and expenses of his witnesses. Apparently plaintiff is the only witness to the alleged accident. At argument his counsel mentioned that a medical witness resides in Pittsburgh, but this doctor's identity was not disclosed; it was not shown whether he was engaged by plaintiff before or after the suit was filed or was recommended by plaintiff's counsel, or whether he presently treats plaintiff for his injuries or merely examined him for trial purposes.

 Although Keyser, West Virginia, plaintiff's home, is 30 miles farther from Baltimore than from Pittsburgh, the added expense for plaintiff to travel this distance is slight, cf. Henderson v. American Airlines, D.C.S.D.N.Y.1950, 91 F. Supp. 191; and if perchance the trial is held in Cumberland, it will be much more convenient and less expensive for plaintiff.

 Neither the statute nor any decision brought to our attention has made the choice or engagement of counsel a factor to be considered in weighing the convenience of a litigant. ...


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