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June 20, 1983


The opinion of the court was delivered by: VANARTSDALEN


 Plaintiff, Lewis D. Hamm, filed this action under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., to recover money damages for injuries he incurred on December 14, 1979 while working as an employee for the defendant, Consolidated Rail Corporation (Conrail). The case was tried before a jury which returned a general verdict in favor of the plaintiff in the amount of $5,000.00. Judgment on the verdict was entered on February 10, 1983, and, thereafter, plaintiff filed a timely motion for a new trial. See Fed. R. Civ. P. 59.

 Plaintiff raises three issues in his motion for a new trial: (1) whether the court erred in submitting the issue of contributory negligence to the jury; (2) whether the verdict is so shocking and so grossly inadequate as to constitute a miscarriage of justice; and (3) whether the court erred in permitting deposition testimony of defendant's expert physiatrist relating to restrictions on plaintiff's activities prior to his injury. After consideration of each of these contentions, and for the reasons set forth herein, the plaintiff's motion for a new trial will be denied.

 The facts upon which plaintiff based his claim are relatively simple. On December 14, 1979, plaintiff was working as a trackman for the defendant Conrail. A trackman is responsible for track maintenance, including the replacement of railroad ties and rails. On the date of the accident, plaintiff and four other railroad employees were repairing a crossing eight miles outside of Williamsport, Pennsylvania. The job first required the removal of the lag bolts, tie timbers and ballast or stone at the crossing. The job then required a trackman to inspect the tie plates which hold the rails secure to insure that the spikes were flush with the tie plates. When this task was completed, new tie timbers were placed into position.

 In order to move the new tie timbers into position, plaintiff was sent to the work bus to get "tie tongs" which are used to carry the timbers. Because there was only one set of tie tongs, and two sets of tie tongs are required to properly lift the tie timbers, plaintiff was directed by his foreman to jockey the tie timbers into position with a "lining bar." Under Conrail safety standards, Rule 3357, tie tongs are the preferable method of lifting and carrying the timbers, but use of a "lining bar" is an acceptable practice.

 As plaintiff was moving the tie timber with the lining bar, the tie timber suddenly stopped. The tie timber struck a spike protruding 1 1/2 to 2 inches from a tie plate. The spike should have been flush with the tie plate. As a result of the sudden stop, plaintiff reinjured the muscle in his left arm. Plaintiff had previously ruptured the biceps muscle in his left arm in an accident in October of 1978 but no corrective surgery had been performed. Plaintiff informed his foreman that he had reinjured his left arm and was taken to Williamsport Hospital for examination. The work gang on which plaintiff was working on December 14, 1979, the day of his injury, was abolished by furlough because of the seasonal nature of the work. Plaintiff did not return to work until March 5, 1980. However, no one with less seniority than the plaintiff had returned to work from the furlough prior to that time.

 (1) Contributory Negligence

 Plaintiff's first assignment of error relates to the charge to the jury. Plaintiff contends that it was error to refuse to charge the jury that there was no evidence presented of record of contributory negligence. The proposed instruction, which I rejected, stated:

20. I charge you that from all the evidence in this case it does not appear that the plaintiff himself was contributorily negligent, and therefore, if you find defendant's negligence contributed, in the slightest degree, to the injuries to the plaintiff, you should award the plaintiff total damage as I shall define it.

 It is plaintiff's position that the defendant offered no evidence to prove that the plaintiff performed the job in an improper manner or was at fault in any other way than in performing the work in accordance with his instructions.

 I charged the jury, in accordance with the Federal Employers Liability Act, 45 U.S.C. § 53, that

the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured . . . shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury . . . of such employee.

 The parties in this action are essentially in agreement as to the applicable propositions of law: (1) the burden of proving contributory negligence is upon the defendant; and (2) where there is no evidence in the record of contributory negligence, it is improper to instruct the jury that their award, if any, may be reduced proportionately if they should find that plaintiff's injury resulted from his own contributory negligence as well as that of the defendant railroad. Morran v. Pennsylvania Railroad Co., 321 F.2d 402 (3d Cir. 1963). The sole dispute between ...

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