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SMITH v. PENNSYLVANIA-READING SEASHORE LINES

March 15, 1973

Leonard S. SMITH
v.
PENNSYLVANIA-READING SEASHORE LINES and E. I. DuPont De Nemours & Co., Inc.


Gorbey, District Judge.


The opinion of the court was delivered by: GORBEY

Before the court are defendants' posttrial motions.

 Plaintiff, a brakeman, brought suit against his employer, Pennsylvania-Reading Seashore Lines (PRSL), under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq., and against E. I. DuPont deNemours & Co., Inc. (DuPont) alleging common law negligence and basing jurisdiction on diversity of citizenship and amount in controversy. Plaintiff sought damages for injuries he allegedly sustained resulting from a series of explosions of smokeless powder while he was resting in a bunkhouse at the DuPont plant located at Carney's Point, New Jersey.

 At a bifurcated trial lasting eight days, the jury responding to special interrogatories in accordance with rule 49(a) Fed.R.Civ.Proc. resolved liability against both defendants. *fn1" Subsequently, the jury assessed damages in the amount of $110,000.00.

 Defendant DuPont has moved for judgment N.O.V. and alternatively for a new trial. Defendant PRSL has filed and briefed the following motions:

 
(a) Judgment N.O.V. in its favor against plaintiff;
 
(b) New trial; and
 
(c) Cross-claim against DuPont for indemnification.

 Both defendants raised numerous issues in the briefs in support of their post-trial motions. Since PRSL and DuPont take different positions on the issues in the case, after a recitation of the facts, their motions will be discussed separately, except where they relate to their liability inter se.

 Since the jury returned verdicts for plaintiff against both defendants, we must give plaintiff the benefit of the most favorable view of the facts and all inferences therefrom. With the above in mind, the jury could have reasonably found the following:

 On June 4, 1969, at about 1:40 P.M., the series of explosions of smokeless gun powder occurred at rest houses numbered 307 and 396 at DuPont's plant at Carney's Point, New Jersey. On the date and at the time in question, plaintiff, a 34 year old brakeman for PRSL, and two fellow crewmen were resting in a bunkhouse located on property leased by the railroad from DuPont, approximately 4,500 feet from the site of the explosions.

 Plaintiff had completed a tour of duty from Camden, New Jersey, to Carney's Point, New Jersey, at about 8:30 A.M. on June 4, 1969, and was resting until his next tour of duty back to Camden at 6:00 P.M. that night.

 The force of one of the explosions caused plaintiff to strike his head against a plywood partition between the bunks. Immediately after the accident, plaintiff complained of no serious affects. At about 10:40 P.M. plaintiff reported that he did not feel well; however, he completed his shift of duty on the morning of June 5, 1969, and he has not worked since that time.

 Plaintiff was subsequently diagnosed as having a herniated disc caused by the June 4, 1969, accident. On March 27, 1970, he underwent a decompression laminectomy. Plaintiff's treating physician testified that the symptoms of pain and numbness in the neck radiating across the ...


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