The opinion of the court was delivered by: GOURLEY
This is an action under the Federal Employers' Liability Act to recover damages for injuries sustained while plaintiff was employed as a conductor for the Pennsylvania Railroad Company. 45 U.S.C.A. § 51 et seq.
Upon jury trial verdict was returned in favor of the defendant.
1. The verdict was against the weight of the credible evidence.
2. The court erred in refusing Plaintiff's Request for Charge No. 6 and No. 8.
Succinctly stated, the principal legal question presented may be stated as follows:
Where an accident arises under circumstances which justify the application of the res ipsa loquitur doctrine, does such right continue where the plaintiff alleges and proves specific acts of negligence on the part of the defendant, and the defendant produces evidence to exculpate itself from negligence for the happening of the event.
The trial court answered in the negative and after most reflected and thorough judgment, I am unable to disturb said conclusion.
The circumstances surrounding the accident are not disputed and are relatively simple.
Plaintiff had been in the Wilkinsburg, Pennsylvania, Yard Office to secure certain orders governing his work and while walking from the yard office to where his train was located he stepped into the space between the rails over which he was required to pass, the ground gave way and he fell into a hole approximating three feet circular in diameter and from five to six feet deep, and sustained serious injury. Said railroad yard was elevated by artificial fill of clay and cinders to a distance of about 20 feet above the surrounding ground, underneath which Penn Avenue, a main highway of the Borough of Wilkinsburg, passes. This condition was created by the defendant approximately thirty-two years before the accident. It is not disputed that plaintiff is free of any contributory negligence.
Plaintiff did not rely solely on the res ipsa loquitur doctrine at pre-trial or trial but predicated his claim of negligence upon evidence geared to establish cracks in a retaining wall and lack of adequate drainage. A civil engineer was called as an expert witness who advanced the opinion and belief that the yard was not built on good fill, that drainage facilities were non-existent, and that the accident occurred due to improper drainage and negligent inspection on the part of defendant.