On February 6, 1974, plaintiff filed a motion for a judgment notwithstanding the verdict or in the alternative for a new trial. It is that motion which is presently before the Court.
On January 8, 1974, immediately preceding the start of this trial, the Supreme Court handed down their decision in Gateway Coal Co. v. UMWA, 414 U.S. 368, 38 L Ed 2d 583, 94 S. Ct. 629, reversing a decision of the Court of Appeals for the Third Circuit. Rejecting the Third Circuit's adoption of a subjective test under § 502 of the LMRA (29 USC § 143), the statute which provides a limited exception to a union's contractual no-strike obligation, the Supreme Court held that "a union seeking to justify a contractually prohibited work stoppage under § 502 must present "ascertainable, objective evidence supporting its conclusion that an abnormally dangerous condition for work exists." 38 L Ed 2d at 597, citing 466 F.2d at 1162. The special interrogatories answered by the jury fairly presented the question of whether such objective evidence of an abnormally dangerous condition existed and the jury answered in the affirmative. The record contains substantial evidence to support their conclusion.
Plaintiff's next contention is that the Court erred in failing to grant their motion for a partial directed verdict at the close of all the evidence. The motion was based on the contention that if there was evidence of abnormally dangerous work conditions, they were confined to the main straight area and not found throughout the Maple Creek Mine. Plaintiff's motion was denied on the basis that there was sufficient, though conflicting, evidence of such conditions throughout the mine to present the question to the jury. See Miles v. Ryan, 338 F. Supp. 1065 (E.D. Pa., 1972), aff'd 484 F.2d 1255 (3d Cir.). The question itself was fairly presented to the jury when I charged:
Third, you must bear in mind that should you find that an abnormally dangerous work condition existed, and find at the same time employees whose work was near those conditions also refused to work, you would have to find for the Plaintiff although in a lesser amount. This is so because the Defendant Union would be liable for a portion of the work stoppage participated in by those members not affected by the abnormally dangerous work condition.