De Pascale v. Pennsylvania R. Co.

• Decision Date: 02 March 1950
• Docket Number: No. 10022.,10022.
• Citation: De Pascale v. Pennsylvania R. Co., 180 F.2d 825 (3rd Cir. 1950)
• Parties: DE PASCALE v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Third Circuit

180 F.2d 825 (1950)

DE PASCALE v. PENNSYLVANIA R. CO.

No. 10022.

United States Court of Appeals Third Circuit

Argued February 9, 1950.

Decided March 2, 1950.

Elias Magil, Philadelphia, Pa. (Richter, Lord & Farage, Philadelphia, Pa., on the brief), for appellant.

Joseph S. Clark, Jr., Philadelphia, Pa. (J. Peter Williams, Philadelphia, Pa., Barnes, Dechert, Price, Myers & Clark, Philadelphia, Pa., on the brief), for appellee.

Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.

McLAUGHLIN, Circuit Judge.

This is an action for personal injuries under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. It was tried to a court and jury and resulted in a verdict in favor of the defendant. Plaintiff's motion for a new trial was denied. From the judgment in favor of the defendant and from the order denying the new trial, plaintiff appeals.

The rather unusual appeal argument is made that the verdict is against the weight of the evidence. The setting aside of a verdict and the allowance of a new trial for that reason is admittedly within the sound discretion of the trial judge and in the absence of abuse, that discretion will not be disturbed on appeal. Erie R. Co. v. Irons, 3 Cir., 48 F.2d 60, 63, certiorari denied 283 U.S. 857, 51 S.Ct. 649, 75 L.Ed. 1463; McCoy v. Gaddes, 3 Cir., 88 F.2d 480; Roedegir v. Phillips, 4 Cir., 85 F.2d 995.

Appellant was a freight train conductor in the employ of appellee. On August 27, 1946, he was working in appellee's freight yard near Ashtabula, Ohio. He said that while walking in the yard, the ground gave way beneath him and his right leg "went down into the hole completely." He said that the ground in the particular area "looked just like the rest, it seemed solid." He said, "I have seen a lot of cave-ins here * * *." The only factual testimony for appellant in addition to his own was part of a statement from track foreman Beaver which tended to substantiate appellant's evidence regarding the hole. Beaver said in the statement, "I went to yard and found hole about fifty feet east of frog of No. 2 track. It was about one foot in diameter and I could get a shovel down, but could not reach solid ground. The hole was right between the rails."

Edward H. Dillon, a brakeman, was a witness on behalf of the defense. At the time of appellant's accident, Dillon was walking within ten feet of him. He said, "I looked around and he was gone, with his one leg, and dropped in." His best recollection was that appellant got right out of the hole himself. He had been working in the yard five years at the time. He did not recollect any other instances where there had been such a cave in and a man hurt. The general maintenance foreman of the yard testified that during his three years service at the yard he had never seen or heard "of a cave-in where a man was hurt" other than the instant one. An earlier statement by him was in evidence and indicated that there had been cave ins though no mention was made of anyone having been hurt. The Ashtabula yardmaster has been at the particular yard since 1913. He said that "I know of no cave-ins there. I have not seen any. I have walked the tracks myself and I haven't heard of anything outside of the one we had with Mr. DePascale."

The trial Court charged, as is the law, that it was the duty of appellee "to maintain a reasonably safe place for the employees of this yard to work" and gave to the jury as a vital question to be determined by them, "Was there a breach of this duty on the part of the Pennsylvania Railroad Company?" Cf. Bailey v. Central Vt. R., 319 U.S. 350, 352, 353, 63 S.Ct. 1062, 87 L.Ed. 1444; Raudenbush v. Baltimore & O.R.Co., 3 Cir., 160 F.2d 363, 366, 367. The Court carefully explained that contributory negligence would not defeat plaintiff's recovery; that it would only go to mitigation of damages. And the Court further gave the jury to understand that if they found the railroad negligent and if that negligence "in whole or part was responsible for the injury which the plaintiff claim...