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BORKOVIC v. PENNSYLVANIA R.R. CO.

January 25, 1960

Victor Joseph BORKOVIC
v.
PENNSYLVANIA RAILROAD COMPANY



The opinion of the court was delivered by: GIGNOUX

This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for personal injuries sustained by the plaintiff while employed as an electrical lineman by the defendant railroad. Plaintiff was severely injured on December 21, 1954, when he fell while climbing a transformer pole in the defendant's Conway, Pennsylvania, Receiving and Classification Yard. After a five-day trial, the jury returned a verdict in favor of the plaintiff in the amount of $ 100,000, and the Court entered judgment accordingly.

 At the trial plaintiff introduced evidence to establish that his accident was caused by negligence of the defendant in two respects: first, because the pole from which plaintiff fell was in an unsafe condition because it was 'pock-marked with holes' from previous climbing and also because it was not equipped with steps for climbing; and secondly, because plaintiff had been forced to climb the pole on the particular occasion under conditions of undue stress and pressure as a part of a 'time test' ordered by his supervisors for the purpose of attempting to disqualify a fellow lineman. Although there was some evidence which might have tended to show that the climbing spurs furnished to plaintiff by defendant were dull or otherwise defective, plaintiff's counsel in his closing argument expressly waived any contention that defendant was negligent in this respect. The defendant's evidence negatived any negligence on its part and was to the effect that the sole cause of the accident was plaintiff's own negligence in climbing the pole improperly.

 At the close of the evidence, the Court denied defendant's motion for a directed verdict. The defendant now moves for judgment in accordance with its motion for a directed verdict under Fed.R.Civ.P. 50, 28 U.S.C.A., and in the alternative for a new trial. in support of its motion for judgment under Rule 50, defendant argues that the evidence was insufficient to support a finding that plaintiff's accident was caused, in whole or in part, by any negligence of the defendant. Defendant's alternative motion for a new trial is based upon the following reasons:

 1. The jury's finding that plaintiff's accident was caused by any negligence of the defendant was against the weight of evidence.

 2. The amount of the verdict was excessive and against the weight of the evidence.

 3. The Court erred in refusing to admit into evidence a Thermofax copy of a written report purportedly signed by Dr. Robert W. Johnson, Jr., a member of the staff of the Johns Hopkins Hospital, Baltimore, Maryland, who had examined the plaintiff at the request of plaintiff's counsel.

 4. The Court erred in its charge to the jury: (a) by using the expression 'rotten and full of holes' in summarizing for the jury plaintiff's contention as to the condition of the pole from which plaintiff fell; and (b) by failing expressly to instruct the jury that any question of defendant's negligence in furnishing plaintiff with defective climbing equipment was no longer before it.

 5. An inquiry made by the jury of the Court after it had retired to consider its verdict indicated that the verdict was capricious because based upon a misunderstanding by the jury of the issues before it.

 6. Plaintiff's counsel took unfair advantage of the defendant by the use of improper trial tactics and argument with respect to the failure of the defendant to produce an adequate photograph showing the condition of the pole involved in the accident.

 Motion for Judgment under Rule 50

 Defendant's contention that the evidence was insufficient to support a finding that plaintiff's accident was caused by negligence of the defendant does not require extended discussion. It is true that the Federal Employers' Liability Act imposes liability only for negligence, and that the mere occurrence of an injury to a plaintiff while employed by a railroad does not make the railroad liable. Inman v. Baltimore & Ohio R.Co., 80 S. Ct. 242; Wilkerson v. McCarthy, 1949, 336 U.S. 53, 61, 69 S. Ct. 413, 93 L. Ed. 497. But a review of the record in the instant case satisfies this Court that the evidence justifies with reason the jury's conclusion that defendant's negligence played a part in producing plaintiff's injuries. Under the rule laid down by the United States Supreme Court in Rogers v. Missouri Pac. R. Co., 1957, 352 U.S. 500, 506, 77 S. Ct. 443, 1 L. Ed. 2d 493, no more is required to present a jury question under the Act. The defendant's motion for judgment under Rule 50 must therefore be denied.

 Motion for a New Trial

 1. The Court cannot agree with defendant's contention that the jury's finding that plaintiff's accident was caused by any negligence of the defendant was against the weight of the evidence. Although the testimony was conflicting, there was ample evidence to warrant a finding of negligence, both because the pole from which plaintiff fell was unsafe for climbing and because plaintiff was subjected to unreasonable risk and danger by the conditions under which he was ordered to climb the pole. There was also sufficient testimony to justify a finding that either or both of these conditions were a proximate cause of plaintiff's fall. This Court is fully cognizant of its duty to set aside a jury verdict and grant a new trial, if upon a review of all the evidence it is of the opinion that the verdict is against the clear weight of the credible evidence or will result in a miscarriage of justice, even though there was sufficient evidence to prevent the direction of a verdict. Williams v. Nichols, 4 Cir., 1959, 266 F.2d 389; Peters v. Smith, 3 Cir., 1955, 221 F.2d 721, 725; Magee v. General Motors Corp., 3 Cir., 1954, 213 F.2d 899; Aetna Cas. & Sur. Co. v. Yeatts, 4 Cir., 1941, 122 F.2d 350. But after applying this standard to test the jury's verdict in this case, the Court cannot conclude that it is against the weight of the evidence or will result in a miscarriage of justice.

 2. Nor does this Court see any merit in the defendant's contention that the amount of the verdict was excessive and ...


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