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HARSHMAN v. BALTIMORE & OHIO R.R. CO.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA


December 30, 1959

Marguerite HARSHMAN, Administrator of the Estate of Ray E. Harshman, Deceased, Plaintiff,
v.
BALTIMORE AND OHIO RAILROAD COMPANY, a Corporation, Defendant

The opinion of the court was delivered by: WILLSON

At the pre-trial in this case it appeared that the plaintiff had insufficient evidence to prevent a directed verdict for the defendant at the conclusion of the plaintiff's case on the issue of liability. Granting, as proven, all the allegations made by plaintiff's counsel, there is still insufficient evidence to show that decedent's injury resulted in whole or in part from the negligence of the defendant. This being a Federal Employers Liability Act case, the requirement is that found in 45 U.S.C.A. ยง 51, the principle familiar to the experienced counsel for each of these litigants. Plaintiff points to a number of decisions embodying the principles expressed in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S. Ct. 443, 1 L. Ed. 2d 493, but in this case, plaintiff's fall was the result of tripping over some object. The object is not identified. It might have been a piece of coal, a stone or one of the rails of the track over which plaintiff's decedent was crossing or even the end of a tie under the rail. Plaintiff's case is founded upon the safe place to work doctrine but the rule is that defendant must exercise reasonable care to provide its employee with a reasonably safe place with which to perform his work. Judicial appraisal of plaintiff's proof indicates that there is no reasonable basis for a finding that any negligence of the employer played any part in the employee's injury. A jury case is therefore not made out.

As suggested at the pre-trial, counsel for the plaintiff filed a supplemental pretrial narrative. The Court granted this privilege to plaintiff in order that she might investigate any evidence which would assist her in making out a case on the issue of liability. The amended pretrial narrative having been filed, defendant's counsel has filed a motion for summary judgment. It will be granted.

19591230

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