The opinion of the court was delivered by: GOURLEY
This is an action under the Federal Employers' Liability Act predicated upon the Railroad's negligence in requiring and permitting plaintiff to walk along a dangerous route while in a fatigued condition after a snow storm. 45 U.S.C.A. 51 et seq. Plaintiff was injured when he fell on the premises of Warner Brothers Pictures, Inc., third party defendant.
For purposes of brevity, the following abbreviations will be employed:
Pennsylvania Railroad Company -- Railroad Warner Brothers Pictures, Inc. -- Warner
Upon jury trial verdict was returned in favor of plaintiff and against Railroad in the amount of $ 16,500, while Warner was exonerated of negligence.
The matters before the court are twofold:
1. Railroad's motion for judgment N.O.V. premised upon the following reasons:
(b) The evidence was insufficient to support a finding that plaintiff's accident was caused in whole or in part by negligence of the defendant.
2. Railroad's motion for new trial premised upon the following reasons:
(a) The finding of the jury that defendant was guilty of negligence which was a proximate or substantial contributing cause of plaintiff's accident was against the evidence and the weight of the evidence.
(b) The amount of the verdict was capricious and completely unsupported by the evidence.
(c) The trial judge erred in refusing to instruct the jury that there was no evidence to support a finding that fatigue or tiredness on part of the plaintiff was a contributing factor to the occurrence of the accident and in refusing to instruct the jury to disregard the argument of plaintiff's counsel that plaintiff's tiredness contributed to the happening of his accident.
(d) The trial judge erred in refusing defendant's first point for charge.
(e) The trial judge erred in not directing and authorizing the jury to find as a fact whether negligence of Warner constituted a proximate cause of the accident as ...