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BERTLES v. GUEST

October 1, 1979

MARGARET H. BERTLES
v.
WILLIAM E. GUEST and WILLIAM E. GUEST, t/a WILLIAM E. GUEST EXCAVATION, and GILES & RANSOME, INC., and CATERPILLAR TRACTOR COMPANY, and INTERSTATE SAFETY SERVICE



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

Plaintiff, Margaret Bertles, instituted this action for damages against defendants William E. Guest, Giles & Ransome, Inc., Caterpillar Tractor Company, and Interstate Safety Service, *fn1" for injuries that she received when she drove her Volkswagen into the rear of a 235 Caterpillar excavator on the night of October 3, 1975. The case, which was based on diversity jurisdiction, was tried before a jury from May 17, 1978 to June 6, 1978. The jury answered interrogatories that resulted in a verdict in favor of the defendants. Plaintiff subsequently filed motions for a judgment n. o. v. with respect to defendant Guest and for a new trial as to all defendants. After carefully considering all of the grounds alleged by the plaintiff, this Court has determined that it will grant plaintiff's motions for a new trial as to defendants Caterpillar and Giles & Ransome, Inc., but must deny plaintiff's motions for a judgment n. o. v. and new trial as to defendant Guest.

 The plaintiff was driving her Volkswagen on Lakeland Avenue in Bristol Township, Bucks County, Pennsylvania. The defendant Guest was a contractor engaged in installing a sewer line along Lakeland Avenue. Guest had leased a 235 Caterpillar excavator from Giles & Ransome, Inc., and was using the Caterpillar to excavate and backfill the sewer line. Plaintiff contended at trial that defendant Guest was negligent in leaving the excavator, without adequate warnings, at the excavation site over a weekend, and that defendants Giles & Ransome, Inc. and Caterpillar Tractor Company, the manufacturer of the excavator, were strictly liable under section 402A in that the 235 Caterpillar was defectively designed since it did not have lights or reflectors on the rear, an ICC bar, or an energy-absorption device. Defendant Guest claimed that he was not negligent, that plaintiff was contributorily negligent, and that plaintiff had assumed the risk. Defendants Giles & Ransome, Inc. and Caterpillar asserted that the excavator was not defectively designed and that plaintiff had assumed the risk.

 Motions for a new trial require the exercise of discretion by the Court, whose "duty is essentially to see that there is no miscarriage of justice." 6A Moore's Federal Practice P 59.08(5), at 59-160 (footnote omitted) (2d ed. 1974); Thomas v. E. J. Korvette, Inc., 476 F.2d 471, 474-75 (3d Cir. 1973). The jury's verdict may be set aside only if manifest injustice will result if it were allowed to stand. The Court may not substitute its own judgment for that of the jury merely because the Court may have reached a different conclusion. To grant a motion for judgment n. o. v., the Court must find as a matter of law that the plaintiff failed to adduce sufficient facts to justify the verdict. Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 (3d Cir.), Cert. denied, 400 U.S. 826, 91 S. Ct. 51, 27 L. Ed. 2d 55 (1970). Such a motion "may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment." 5A Moore's, supra, P 50.07(2), at 50-77 (footnote omitted). Korvette, supra, at 474.

 I. Defendant Guest.

 The jury answered "yes" to the following interrogatories as to the defendant Guest.

 
1. Do you find by a preponderance of the evidence that the defendant, William Guest, was negligent?
 
2. Do you find by a preponderance of the evidence that William Guest's negligence (upon which you based your answer of "yes" to question No. 1) was a proximate cause of the accident?

 As to the plaintiff, Margaret Bertles, the jury answered "no" to the following interrogatory.

 
3. Do you find from a preponderance of the evidence that the plaintiff, Margaret Bertles, was negligent?

 As to the plaintiff, however, the jury answered "yes" to the following interrogatory.

 
5. Do you find from a preponderance of the evidence that the plaintiff, Margaret Bertles, assumed the risk in connection with the negligence of defendant, William Guest, which you found to be a proximate cause of the accident?

 A. Motion for judgment n. o. v. as to Guest.

 Bertles' motion for a judgment n. o. v. as to defendant Guest is based upon her assertion that there was insufficient evidence from which the jury could reasonably find that she had assumed the risk of defendant Guest's negligent action. Plaintiff correctly contends that it is necessary for one to be subjectively aware of a risk before it can be assumed. She also contends, however, that the testimony at trial ...


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