The opinion of the court was delivered by: DAVIS
The defendant in this case has filed a Motion for Judgment Notwithstanding the Verdict and a Motion for a New Trial. In support of his motions the defendant alleges the following:
1. Plaintiff failed to sustain his burden of proof regarding the defendant's negligence.
2. The verdict is excessive.
3. The trial Judge made various errors in his rulings and in the general conduct of the trial.
On the evening of December 15, 1963, plaintiff, a brakeman, was one of five members of a crew working in a freight yard of the defendant company. The crew was ordered by the yardmaster to go to track No. 5 and pick up a draft of cars which was "all in" and move them to the New Jersey Central Yard. (N.T. 51-56). Track No. 5. is a track which is used to assemble cars with a similar destination. It holds about 26 to 34 cars depending upon the type of cars and the usual practice is to fill up the tracks before moving the standing train. (N.T. 46, 50, 239). Track No. 5 is higher on the west end than on the east end (N.T. 25), and, while assembling the cars, it is customary for the crew on the west end to push a car or cars for a short distance and then let the momentum and gravity of the track move the car toward the east end (N.T. 41-45). However, the first three or four cars down the track must be ridden by a brakeman who stops the car at the east end and then applies the brakes so that the first three or four cars can then hold the remaining cars. (N.T. 45). Also, experienced railroaders would not push fully loaded cars down the track without a brakeman because the impact on the standing cars would be too great. (N.T. 45-48).
Plaintiff and the rest of the crew came in with an engine on the east end (the lower end) of track No. 5 and plaintiff got off the engine and proceeded to release the brakes on the first few box cars. (N.T. 58-61). While standing on the brake platform of the one of the box cars there was a terrific impact which moved the engine and the entire draft of cars about a half of car length and threw plaintiff onto the ground, whereupon he sustained serious injuries. (N.T. 62-69; 431).
Defendant's first contention is that the plaintiff failed to present sufficient evidence to allow a jury to conclude that defendant was negligent and that such negligence contributed to the accident. To support this contention the defendant states that the plaintiff has only shown that an accident occurred and that this is insufficient under the Federal Employers' Liability Act to impose liability on defendant. It is defendant's argument that plaintiff must present positive facts demonstrating that defendant was negligent, and that such negligence was the cause of plaintiff's injury.
The Court disagrees with defendant's argument. Negligence can not only be defined as the doing of that which a reasonably prudent man would not do under the circumstances but also as the failing to do that which a reasonably prudent man would do under the circumstances. In this regard, negligent acts of commission are usually proved by direct evidence, while negligent acts of omission are usually proved by circumstantial evidence. Pope v. Reading Co., 304 Pa. 326, 156 A. 106, (1931). Thus, it has been held that a plaintiff in a negligence action does not have to prove the cause of the accident by direct evidence but is only required to show circumstances from which a reasonable inference of defendant's negligence can be drawn. Lewis v. U.S. Rubber, 414 Pa. 626, 202 A. 2d 20 (1964).
It is clear that under the FELA the defendant has the duty to provide its employees with a safe place to work. Sano v. Pennsylvania R. Co. 282 F.2d 936 (C.A. Pa. 1960). The Court believes that in this case there is ample evidence to indicate that the defendant railroad through one or more of its employees failed to act in a manner in which a reasonably prudent person would have acted to provide the plaintiff with a reasonably safe place to work.
The evidence presented at trial clearly shows that the yardmaster, who was in charge of the entire yard, told plaintiff's crew that the draft of cars on track No. 5. was "all in" and that it was safe to go onto that track and move the draft to the Jersey Central yard (N.T. 56, 422, 444); the yardmaster knew, or should have known, that there was another crew working on the west side of the yard and it was normally their job to assemble the drafts of cars with similar destinations; (N.T. 25,446) while plaintiff and the rest of the crew were working on the draft of cars there was a terrific impact which moved the engine and the entire draft about a half a car length (N.T. 431); throwing one crew member about in the engine (N.T. 561) and throwing the plaintiff off a boxcar onto the ground (N.T. 62).