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SZAJNA v. BESSEMER & LAKE ERIE R.R. CO.

May 21, 1970

Walter J. SZAJNA, Administrator of the Estate of Edward Randall Knapp, Plaintiff,
v.
BESSEMER AND LAKE ERIE RAILROAD COMPANY, Defendant and Third-Party Plaintiff, v. ENICK TRUCKING, INC., Third-Party Defendant. Walter J. SZAJNA, Administrator of the Estate of Edward Randall Knapp, Plaintiff, v. ENICK TRUCKING, INC., Defendant and Third-Party Plaintiff, v. BESSEMER AND LAKE ERIE RAILROAD COMPANY, Third-Party Defendant


Marsh, Chief Judge.


The opinion of the court was delivered by: MARSH

MARSH, Chief Judge.

 This action under the Federal Employers' Liability Act and under the common law was tried to a jury which found that neither defendant was guilty of negligence with respect to the death of plaintiff's decedent. The plaintiff has filed a motion for new trial contending that "the Court erred in charging the jury on Contributory Negligence when there was no evidence of Contributory Negligence". *fn1" In our opinion the motion should be denied.

 There was in this case circumstantial evidence of contributory negligence, similar to that discussed in Gans v. Baltimore & Ohio Railroad Company, 319 F.2d 802 (3d Cir. 1963), which justified the instructions on contributory negligence.

 An appropriate order will be ...


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