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GOWER v. CHESTNUT RIDGE RY. CO.

September 3, 1958

Anna V. GOWER, Administratrix of the Estate of Russell E. Weidman, Deceased
v.
CHESTNUT RIDGE RAILWAY COMPANY and Pennsylvania Railroad Company and Lehigh and New England Railroad Company



The opinion of the court was delivered by: LEAHY

Plaintiff's decedent, an employee of the Chestnut Ridge Railway Company as a brakeman, was riding a caboose when the car in front jumped the track and in the accident that followed decedent was crushed beneath a Pennsylvania Railroad boxcar and killed. The other defendants are the Pennsylvania Railroad Company and Lehigh and New England Railroad Company. Suit was started on January 16, 1957. Interrogatories and answers have been filed. More than a year after suit was started defendant Chestnut Ridge Railway Company moved for a change of venue to the Middle District under 28 U.S.C.A. § 1404.

 2. Plaintiff opposing the transfer points out all of defendant's witnesses are located only 65 miles from Philadelphia, and plaintiff's witnesses are from Sewell, New Jersey (15 miles) and from Philadelphia. Thus all witnesses are within the 100 mile subpoena limit. Plaintiff insists that under the Federal Employers' Liability Act, 45 U.S.C.A. 51 et seq., she should be given choice of forum. Reliance is made on Judge Kraft in Buchanan v. New York Central Railroad Co., D.C., 148 F.Supp. 732, involving refusal to transfer to the Western District; Judge Welsh in Bailey v. New York Central Railroad, D.C., 191 F.Supp. 166, involving refusal to transfer to the Middle District; likewise Judge Kirkpatrick in Naughton v. Pennsylvania Railroad Company, D.C.E.D.Pa., 85 F.Supp. 761, refused in 10 cases to transfer to the Western District. Plaintiff's position, here, comes within the thought of Judge Rodney in Brown v. Insurograph, Inc., D.C.Del., 85 F.Supp. 328, 330: 'A denial to the plaintiff of the forum of his choice on the ground of convenience of parties should not be based solely on the convenience of the defendant and transfer on such ground, over objection, should be based upon a more conclusive showing of convenience than the mere desire of the defendant.'

 3. I can find no case under the Federal Employers' Liability Act where all witnesses are within the subpoena limit and such a change of venue has been granted over the objection of plaintiff. 6 of the Federal Employers' Liability Act gives the injured employee or his representative a wide choice of forum in which to bring the action. This right should be recognized unless serious inconvenience or injustice to the defendant will result. Under former decisions of this Court, and under the facts at bar, the motion of defendant to transfer this action from this District to the Middle District over the objections of plaintiff will be denied.

 An order should be submitted.

19580903

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