The opinion of the court was delivered by: DAVIS
I have decided to deny plaintiff's motion for a new trial. "(W)here, as here, the case turns on controverted facts and the credibility of witnesses, the case is peculiarly one for the jury." Ellis v. Union Pacific Railroad Co., 329 U.S. 649, 653, 67 S. Ct. 598, 600, 91 L. Ed. 572 (1947). I hold that the evidence presented at trial raised substantial questions of fact, thus making the case "peculiarly one for the jury." Since there was a reasonable basis for the verdict which the jury returned, I will not disturb their findings.
Briefly, the facts of this case
stated in a light most favorable to the verdict winner
are as follows: Plaintiff, a trackman for the defendant railroad at the time of the accident, was working as part of a track crew replacing railroad ties. On June 17, 1976, at approximately noon, Mr. Legette stopped his work and walked down the tracks to get a drink of water. The water container was located on or behind defendant's tie handler machine. After obtaining his drink, and while returning to his work, Mr. Legette was struck and injured by the swinging boom of the tie handler machine. Plaintiff was taken to the hospital, where he was x-rayed, treated and discharged. In addition, plaintiff has since undergone additional medical treatment for his injuries.
Plaintiff has advanced the following grounds by way of brief and oral argument in support of his motion for a new trial:
"1. The gross damages found by the jury was (sic) against the weight of the evidence.
"2. The determination found by the jury as to the percentage of contributory negligence was against the weight of the evidence.
"3. The Court erred in charging on the issue of contributory negligence.
"4. The Court refused to charge plaintiff's request for charge No. 10 and No. 11, regarding defendant's duty to adopt and use reasonably safe methods of doing the work.
"5. The charge of the Court was confusing and self-contradictory.
"6. The charge confused the issues of contributory negligence and assumption of risk.
"7. The Court failed to charge that the failure of defendant to call as a witness the crane operator whose crane struck plaintiff raised an inference that his testimony would be unfavorable to defendant.
"8. The Court erred in its charge in failing to charge on all the elements and circumstances of the claimed negligence so that the jury might fix the quality and quantity of that negligence in its relation to the sum total of the negligence of both parties.
"9. The Court erred in failing to state any of the facts of the case or to apply the facts of the ...