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MILLIRON v. BAKER

January 2, 1973

Joseph MILLIRON, Administrator of the Estate of Ross T. York, Deceased, Plaintiff,
v.
George P. BAKER et al., Defendants


Marsh, Chief Judge.


The opinion of the court was delivered by: MARSH

MARSH, Chief Judge.

 I quite appreciate the disappointment and dissatisfaction of the invalid widow and plaintiff's counsel with the jury verdict in favor of the defendant. Usually it is a surprise when a railroad wins a FELA case by jury verdict. However, in this unusual case, it is my opinion that plaintiff's motion for a new trial must be denied.

 The plaintiff-administrator assigns the following reasons for a new trial:

 
"1. The verdict was against the weight of the evidence.
 
"2. Plaintiff was deprived of his right to trial before a jury of twelve persons and was compelled to submit his case to a jury of less than twelve.
 
"3. The Court erred in instructing the jury concerning the testimony of Dr. Caplan.
 
"4. The Court erred in instructing the jury as to plaintiff's contentions of negligence and in limiting such contentions solely to the issue of whether Dr. D. W. Bishop should have caused plaintiff's decedent to be hospitalized.
 
"5. The Court erred in limiting the jury's determination of negligence by the defendant to the issue of whether Dr. Bishop should have caused decedent to be hospitalized."

 Reason No. 1

 I cannot find that the verdict was clearly against the weight of the evidence. The plaintiff contended and offered proof that Dr. Denning and Dr. Bishop, the railroad's doctors, were negligent in that after taking a history of Mr. York's pains and medication, and after examination of his current and prior electrocardiograms, they did not recognize an impending myocardial infarction and immediately commit him to a hospital or immediately advise his personal physician, Dr. Ayers, of an incipient and urgent problem, but instead advised York that there was no significant change in his cardiograms and he returned home reassured. Plaintiff contends that York's life might have been saved in a hospital and, therefore, the negligence of the railroad's doctors contributed to Mr. York's death early the next morning at his home.

 Inconsistencies were developed in the opinion testimony of the medical experts on each side which, of course, were for the jury to reconcile. The verdict winner is entitled to all inferences that may reasonably be drawn from the evidence. The reasonable inferences to be drawn from the testimony of Dr. Bishop and Dr. Canter, and even from the plaintiff's medical witnesses, Dr. Brandon and Dr. Ayers, were sufficient to support the verdict.

 Although I might have come to a different conclusion as trial judge, "courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable." Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 35, 64 S. Ct. 409, 412, 88 L. Ed. 520 (1944); Reiner v. Bankers Security Corp., 305 F.2d 189, 193 (3d Cir. 1962). "* * * [The] continuing concern of the courts of the United States [is] that in the federal forum the constitutional right to jury trial [should] not be eroded by judicial intrusions upon the province of the jury * * *." Rumsey v. Great Atlantic and Pacific Tea Company, 408 F.2d 89, 91 (3d Cir. 1969); cf. Lind v. Schenley Industries, Inc., 278 F.2d 79, ...


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