The opinion of the court was delivered by: GOURLEY
In this action under the Federal Employers' Liability Act, plaintiff claims damages for injuries sustained when the earth suddenly gave way beneath him in the Railroad's yard while employed as a brakeman for the Pennsylvania Railroad Company. 45 U.S.C.A. § 51 et seq.
Pennsylvania Railroad Company joined John F. Casey Company as third party defendant on the theory that Casey had performed certain work, which included tunnelling for the purpose of laying conduit and pipe in the general area where plaintiff was injured and that plaintiff's injuries were due in whole or in part to Casey's negligence in the performance of its contract with the Railroad.
Upon jury trial verdict was returned in favor of plaintiff and against defendant, Pennsylvania Railroad Company, in the amount of $ 91,000, and found judgment in favor of John F. Casey Company on the Railroad's third party claim.
Motion for Judgment Notwithstanding the Verdict.
After plaintiff, in the course of his employment had moved a cut of cars and returned in a motor car provided to transport brakemen at the Conway Yard of defendant which had stopped at its usual place in said yard at the apex of a hump, plaintiff commenced to walk toward the Yardmaster's office when the earth suddenly gave way beneath him at a point which appeared previously to be solid ground.
Several months prior to plaintiff's accident, Casey, third party defendant, had done certain tunnelling in the general area subject to approval by the Railroad's inspecting personnel.
Evidence was further adduced to establish that the ground in the vicinity where the accident occurred had partly washed away and required the placing of timbers. Further, that a plague of rats had been living in the hump and on one occasion at least a fire had been burning underneath the hump, requiring excavation on the part of the Railroad in order to extinguish the fire.
In view of the duty of inspection which reposed upon the Railroad with respect to tunnelling work being performed by Casey together with evidence of specific circumstances and conditions upon which a finding of negligence might well be premised, it is my judgment that in passing upon a motion to set aside a verdict for plaintiff and to enter judgment for defendant, construing the evidence and all inferences to be drawn therefrom in a light most favorable to the plaintiff and all conflicts in his favor, that ample evidence was produced to raise a jury question. Thomas v. Conemaugh & Black Lick Railroad, 3 Cir., 234 F.2d 429.
I am satisfied that the record evinces sufficient credible evidence to support the findings of the jury.
The motion for arrest of judgment or for judgment notwithstanding the verdict must be refused.
In addition to the general allegations that the verdict was against the evidence, the weight of the evidence and the law, it is contended that the court erred in its instructions to the jury as to the applicability of ...