that the other driver was negligent was unnecessary and was held to be mere surplusage.
In an action by a brakeman against his employer, the jury returned a verdict for the plaintiff. On appeal the court held that the lower court properly disregarded as surplusage the jury's finding that the railroad's negligence had been passive, in view of other findings that the conduct of the railroad constituted negligence causing the accident. The court noted that where a special verdict is taken under Rule 49(a), "the trial judge reserves a large measure of control over the judgment to be entered, in the interest of substantial justice between the parties." Ratigan v. New York Central Railroad Company, 291 F.2d 548 (2d Cir. 1961). See also Rule 58 as to entry of judgment. The Supreme Court has said that in a case of allegedly inconsistent special interrogatories "it is the duty of the courts to attempt to harmonize the answers, if it is possible under a fair reading of them: 'Where there is a view of the case that makes the jury's answers to special interrogatories consistent, they must be resolved that way'". It was held that the answers must be reconciled by exegesis if necessary before the court is free to disregard the jury's findings. Gallick v. B & O RR. Co., 372 U.S. 108, 83 S. Ct. 659, 9 L. Ed. 2d 618 (1963). In Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 82 S. Ct. 780, 7 L. Ed. 2d 798 (1962), the Supreme Court further cautioned that search for one theory of the case which will make the jury's findings inconsistent results in a collision with the Seventh Amendment. The Supreme Court of Pennsylvania has likewise indicated that every reasonable possible intendment is to be made in favor of a jury's findings, and an inconsistency may justifiably be declared to exist only if there is no reasonable theory or conclusion to support the verdict. Hornak v. Pittsburgh Rwys. Co., 433 Pa. 169, 249 A. 2d 312 (1969).
In the instant case under the evidence and the law, the jury may have found that Wilson was guilty of negligence in over driving his headlights and passing Rudd when a dangerous situation was apparent; they may have found him guilty of negligence in not reducing his speed and allowing Rudd to proceed and then pulling in behind Rudd. The jury may also have found that when Wilson applied his brakes and skidded that this skid and resulting injuries were due to the unusually slippery condition of the road surface. (See page 67 of charge.) Thus Wilson could be guilty of negligence in the happening of the accident but not of contributory negligence proximately causing his own injuries.
For the above reasons, the court finds that the special interrogatories submitted to the jury contain no inconsistency. Findings as to lack of contributory negligence on the part of Wilson as plaintiff would only apply if he were entitled to recover which he obviously is not. We therefore treat this finding as a nullity and surplusage. (See pages 51, 54 and 74 of transcript.)
We have considered the decision of the Supreme Court of Pennsylvania in McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A. 2d 759 (1972). This abolishes the prior rule in Pennsylvania holding that contributory negligence in the "slightest degree" bars recovery, see Crane v. Neal, 389 Pa. 329, 132 A. 2d 675 (1957), and conclude that this does not materially affect our situation.
The jury here was instructed in accordance with the "slightest degree" rule, but since the Pennsylvania Court has now said (per Mr. Justice Nix) that the rules determining negligence and contributory negligence are the same, and we are disregarding and treating as surplusage the answer to Question 5, the McCay case does not affect the outcome here.
Another point raised by Wilson in support of his motion for new trial is that the court erred in refusing to allow counsel for Wilson and counsel for his employer both the right to cross-examine witnesses called in plaintiff's case. Parties having substantially the same interests should not be permitted to examine witnesses in relays. Counsel for these two parties with substantially the same interest were allowed to determine as to each witness who was to cross examine. The cross-examination was vigorous and complete and no substantial harm was done. Such matters are within the sound discretion of the trial judge to prevent harassment of witnesses and to keep cross-examination in due bounds.
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