459 F.2d 468 (3rd Cir. 1972), 71-1499, Lewis v. Penn Cent. Co.

Docket Nº:71-1499.
Citation:459 F.2d 468
Party Name:Harry R. LEWIS, Appellant, v. PENN CENTRAL COMPANY, a corporation.
Case Date:April 26, 1972
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 468

459 F.2d 468 (3rd Cir. 1972)

Harry R. LEWIS, Appellant,

v.

PENN CENTRAL COMPANY, a corporation.

No. 71-1499.

United States Court of Appeals, Third Circuit.

April 26, 1972

Submitted April 6, 1972.

Page 469

Paul E. Moses, Evans, Ivory & Evans, Pittsburgh, Pa., for appellant.

Richard D. Klaber, Dickie, McCamey & Chilcote, Pittsburgh, Pa., for appellee.

Before ADAMS, and GIBBONS, Circuit Judges, and BECKER, District Judge.

OPINION

PER CURIAM:

In 1965, while in charge of one of the defendant railroad's freight crews, plaintiff, Harry Lewis, was seriously injured. The crew had been ordered to place two railroad cars on a siding on which there were already several cars. The crew, without difficulty, was able properly to place one of the cars, but the placement of the second car was much more complex. Of the alternative means available, Lewis decided to swing the second car onto a nearby siding in order to facilitate its coupling to the end of the engine opposite from its original coupling. When the car failed to clear the cross-over track, Lewis elected to employ a technique known as "poling" to move the car into proper position for coupling. For this purpose, Lewis obtained a four-by-four-inch piece of lumber and inserted it between the locomotive and the second car. The pole slipped out during the first try. Then, on the second attempt to move the car, the pole snapped in two, and one of the flying pieces struck Lewis in the chest and stomach, causing his injuries.

Suit was commenced in 1968 in the district court pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. After both sides presented their evidence, the case was submitted to the jury on special interrogatories. The jury found that the railroad was negligent, and that Lewis' contributory negligence was the cause of 75% of his injuries. Without regard to Lewis' contributory negligence, the jury determined the damages to be $100,000, which the district court reduced to $25,000 based on Lewis' 75% contribution to his injuries.

Lewis has appealed from the verdict as reduced, contending that certain remarks made by the railroad's counsel during his closing argument to the jury were so prejudicial that Lewis should be awarded a new trial limited solely to the issue of damages. The statement complained of was:

"How about this problem, members of the jury...

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