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BRIAN YOST v. UNION RAILROAD COMPANY (11/30/88)

filed: November 30, 1988.

BRIAN YOST
v.
UNION RAILROAD COMPANY, APPELLANT. BRIAN YOST V. CONSOLIDATION COAL COMPANY AND TWIN RIVERS TOWING COMPANY V. UNION RAILROAD COMPANY, APPELLANT. BRIAN YOST, APPELLANT, V. UNION RAILROAD COMPANY. BRIAN YOST, APPELLANT, V. CONSOLIDATION COAL COMPANY AND TWIN RIVERS TOWING COMPANY V. UNION RAILROAD COMPANY



Appeal from the Judgment entered in the Court of Common Pleas of Allegheny County, Civil Division, No. GD NO. 85-5780. Appeal from the Order in the Court of Common Pleas of Allegheny County, Civil Division, No. GD NO. 85-5780.

COUNSEL

Gerald C. Paris, Pittsburgh, for appellant (at 01367PGH87) and appellee (at 00184PGH88).

Arthur Cutruzzula, Pittsburgh, for appellant (at 00184PGH88) and appellee (at 01367PGH87).

Cirillo, President Judge, and Rowley and Tamilia, JJ.

Author: Tamilia

[ 380 Pa. Super. Page 239]

These are consolidated appeals filed by two of three parties in this personal injury action. The first appeal at No. 01367 is by defendant Union Railroad Company (hereinafter "Union Railroad") from a judgment entered, after a molded verdict and adjustment for payments made by Union Railroad, in the amount of $120,196.62 in favor of the plaintiff Brian Yost (hereinafter Yost). The second appeal at No. 00184 is by Yost from an Order vacating a portion of the judgment in the amount of $20,483.85, which had been previously awarded for delay damages under Pa.R.C.P. 238.

On the night of November 30, 1983, during the course of his employment as a bargeman for Union Railroad, Yost injured his ankle when he slipped and fell on a piece of coal while traversing a narrow gunwale of a barge. As a result of this incident, Yost brought an action under the Jones

[ 380 Pa. Super. Page 240]

Act, 46 U.S.C.App. § 688, against Consolidation Coal Company (hereinafter "Consolidation"), the owner of the barge, and Twin Rivers Towing Company (hereinafter "Twin Rivers"), a subsidiary of Consolidation and the charterer of the barge upon which he was injured. The cases were consolidated for trial, which resulted in the jury finding Union Railroad 100 per cent negligent with no negligence attributable to Yost, Consolidation or Twin Rivers. The trial court molded the verdict by awarding Yost $20,483.85 for Rule 238 delay damages and awarding Union Railroad $1,904.88 as an offset for payments it had made under the Longshoreman and Harbor Workers' Compensation Act (hereinafter "LHWCA"), 33 U.S.C. § 901 et seq.; the trial court adjusted Union Railroad's requested offset downward by 40 per cent for attorney's fees incurred because of the LHWCA claim. The trial court denied Union Railroad's post-trial motions and judgment for Yost was entered on September 16, 1987 for $120,196.62 from which Union Railroad timely appealed. By a subsequent Order, dated January 5, 1988, accompanying its Opinion disposing of Union Railroad's post-trial motions, the trial court struck its earlier award of delay damages in the amount of $20,483.85. Yost appealed this Order in a timely manner.

The first issue presented by Union Railroad concerns the jury's failure to apportion any degree of negligence to Yost, arguing the verdict is contrary to the weight of the evidence and seeking a new trial on this ground.

[ 380 Pa. Super. Page 241]

It is the jury's responsibility as the finder of fact to determine the facts and we will not overturn their findings absent a showing that the verdict is capricious, against the weight of the evidence and resulted in a miscarriage of justice. Gajkowski v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 515 Pa. 516, 530 A.2d 853 (1987). In determining whether a verdict is against the weight of the evidence, we must consider all of the evidence, and only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice should a new trial be granted. Burch v. Page 241} Sears, Roebuck and Company, 320 Pa. Super. 444, 467 A.2d 615 (1983); Weaver v. Firestone Tire and Rubber Company, 267 Pa. Super. 548, 407 A.2d 45 (1979). A refusal to grant a new trial on weight of the evidence grounds will not be reversed absent an abuse of discretion. Burch, supra; Yandrick v. Radic, 291 Pa. Super. 75, 435 A.2d 226 (1981).

At the time of the accident, Yost was employed as a bargeman at Union Railroad's Duquesne Coal Dock, a transfer facility for raw materials. At that facility, barges loaded with coal and other raw materials arrive for unloading to railroad cars for further transportation of the materials to customers. Upon arrival, the loaded barges are placed in the loaded fleet to await transfer by a small tugboat for a large machine known as a continuous unloader, which uses revolving buckets to scoop the materials out of the barge. ...


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