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December 5, 1940


The opinion of the court was delivered by: BYERS

BYERS, District Judge.

On October 25, 1940, the plaintiff recovered a verdict for the death of her husband, which the defendant moved to set aside as being contrary to the law and the evidence, and for a directed verdict; as to both of which motions decision was reserved pending the receipt of briefs and the testimony in the case. All papers were filed on November 9, 1940.

There was a prior trial during the month of June, 1940, which resulted in a disagreement, following which a motion for a directed verdict in favor of the defendant was denied and a new trial was ordered.

 At the former trial, as on this, the defendant rested at the close of the plaintiff's case, and it seems that the plaintiff now contends that the present trial judge is relieved of responsibility for deciding the pending motions. by reason of the order entered by Judge Galston, who presided at the first trial.

 The point is not free from difficulty, since the plaintiff's evidence was the same at both trials (with one inconsequential exception) and consisted of the testimony of several of the decedent's fellow employees, taken under deposition.

 The earlier ruling to which I was required to defer on the trial was that a verdict would not be directed for the defendant, which seems to be the equivalent of a decision that motion to dismiss at the close of the plaintiff's case could not be granted, as a matter of law. See Commercial Union of America v. Anglo-South American Bank, 2 Cir., 10 F.2d 937; In re Hines, 2 Cir., 88 F.2d 423.

 Judge Galston was dealing with a mistrial caused by the failure of the jury to agree, and nothing appears in his opinion to the effect that he would regard himself as bound to allow the verdict of the jury to stand if he should preside at the second trial, or that he anticipated that any other judge of this court could not deal with a motion to set aside a plaintiff's verdict, should one be reached, according to the then apparent legal necessities of the case.

 The responsibility of deciding this motion on the merits would be willingly relinquished if the "law of the case" has been established as the plaintiff argues; but the provisions of Federal Rules of Civil Procedure, rule 50(b), 28 U.S.C.A. following section 723c, seem to indicate that no such evasion of responsibility is permissible.

 If the prior decision should be interpreted to mean that, on the undisputed evidence, a judge conducting the second trial must permit a verdict to stand, then the above section of the Rules to that extent would be ignored; while, if the latter be deemed to control the present exercise of judicial function, it is apparently argued that there is a departure from the earlier ruling.

 If a choice between these positions is indeed required, it will be that the responsibility placed upon the court by the Federal Rules commands priority.

 The plaintiff's testator, George S. Willis, was a signal maintainer in the defendant's employ, and had been for many years. He was an experienced man and his record is unimpeached; he met his death on August 25, 1939, at about 8:45 a.m. (the weather being clear) while in the company of Myers, his subordinate as a signal maintainer, and trackman Donofrio, in the reclassification freight yard of the defendant company at Enola, near Harrisburg, Pennsylvania.

 That he was struck by a loaded box car being ridden by Van Camp, a brakeman, which was moving westerly by gravity at a speed estimated to be about ten miles an hour, from the Hump past the switch known as No. 14, and onto track 15; and that he died that day as the result of his injuries, are not in dispute.

 That Willis, Myers and Donofrio were in a group at Switch 14, engaged in a task pertaining to their customary occupation, is also conceded.

 What each man was doing is the subject of argument by the plaintiff, who asserts that the testimony of Myers and Donofrio was in part contradictory, or was to be discredited in part, because of their continuance on the defendant's employment roster, whereby the jury would have been justified in refusing to believe their narratives and in concluding that there was deliberate falsification by them in certain material respects.

 Seemingly the plaintiff argues that the verdict must be deemed to have decided not only that there men were untruthful, but that the converse of certain of their testimony must have been true, and that therefore the verdict must be sustained; for instance, their testimony that Willis was to do the watching for moving freight cars must have been repudiated by the jury, and have been interpreted as establishing that Willis was not acting as the lookout, and therefore, although there was no testimony other than that of Myers and Donofrio on the subject, the verdict may not be set aside.

 The foregoing states the plaintiff's position rather baldly but the argument made for her comes to that.

 The car which did the damage moved westerly from the Hump, as has been stated, and followed another at a distance of about three car lengths, or 120 feet; the leading car was diverted at Switch A, 355 feet east of Switch 14, to enter track 21, to the north of tracks 14 and 15, which in turn were controlled by Switch 14.

 Van Camp's car, therefore, had to cover 355 feet before arriving at the place where the men were working, but it also had to pass Switch B, 115 feet easterly therefrom, at which it could have been diverted to tracks 11, 12 and 13, to the south of Switch 14, so that the actual destination of this car, namely, track 15, could not have been known with certainty to men standing at or near Switch 14 until Switch B was passed. In other words, the offending car had to travel 240 feet, which would require 16 seconds at a ten mile speed, while the men working at Switch 14 moved aside into the "six foot" (the space between the tracks) so that the car could pass to track 15 without injury to themselves.

 Track 14 was closed that morning at about 8 o'clock, at the request of Donofrio, who was sent to the Hump office by Willis to notify the Assistant Yardmaster and the Switchman in that office of the necessity for closing it to traffic because Switch 14 needed repairs. This means that they knew that the repair work would shortly commence and that thereby track 14 would be out of service, but that track 15 would remain available to receive cars. That is so because, when Switch 14 was spiked or blocked so as to remain open, cars could pass onto track 15 but not to track 14.

 It is apparent that this understanding was common to the switchman in the yard office and to Willis, Myers and Donofrio, who had the work in charge.

 The specifications of negligence, as distilled from the plaintiff's answers to interrogatories and her briefs on this motion, are:

 1. That the defendant should not have permitted any freight cars to pass Switch B, which means that all tracks controlled by Switch 14 should have been put out of service, namely, tracks 14, 15, 16 and 17. This will be discussed.

 2. That Van Camp, riding the offending car, failed to give any warning or signal to these men as his car approached Switch 14. This was impossible, as the testimony shows.

 3. That the switchman in the Hump office who operated this set of switches, namely, A, B and 14, failed to give these men any warning of the approach of Van Camp's car. No necessity therefor is shown by the testimony.

 4. That the defendant "failed or omitted to make and promulgate rules and regulations requiring the giving of a signal or warning to men at work in connection with switches before operating cars over or in the vicinity of said switches, and requiring that a watchman, provided with a whistle and flag, be stationed at a reasonable distance from said men to warn them of the approach of cars, and warn the brakeman or persons riding upon said cars of the presence of men upon the tracks." This will be discussed.

 5. That "the defendant failed to make or promulgate a rule requiring the tower operator, car rider, or other employee, to give some notice to men working in connection with switches before operating cars over or in the vicinity of said switches". This will be discussed.

 As has been said, the testimony of Myers, Donofrio, Van Camp and other defendant witnesses was taken by the plaintiff under deposition at Harrisburg, and read to the jury. That method was chosen by the plaintiff, who of course could have brought her suit in Pennsylvania and subpoenaed the witnesses to appear in court.

 The plaintiff's attempts to discredit the testimony of these witnesses depended rather upon insinuation than direct statement, and was conducted with some adroitness so far as the summation was concerned; therefore, a proper disposition of this motion requires a careful scrutiny of their depositions and all that can be gathered therefrom, in the effort to appraise the true value of their testimony.


 He had been a trackman for twenty-two years and was seriously injured by the car that struck Willis, and in April of 1940, when his testimony was taken, was on sick leave. This is understood to mean that he is still in the defendant's employ and presumably in receipt of some compensation, but as to that there is no evidence.

 On the morning in question, the work at Switch 14, which engaged the attention of these three men, was renewing a rod to put the switch in better condition:

 "Q. What was wrong with it? A. Why, 6 inch open space, to reduce it to 5. You know they wear out, the bolts and rods, had to change it and put them in the place it was before."

 The job would take from twenty minutes to half an hour, depending upon "how the cars are coming down and how long it takes to get it done". The switch was blocked straight, shutting off track 14 but leaving the other track open for traffic.

 "Q. So you and Myers and Willis were working at that switch? A. Two of them was working, one was watching.

 " Q.Who was working? A. Me and Myers and George was watching."

 As to the average speed of the freight cars moving as this one was:

 "A. I would say about 10, that is all I think. I don't know. I never --

 "Q. Did you say 10 to 15 before? A. Yes, 10 to 15. Some of them pick up speed, some of them not, you know."

 The witness was swinging a sledge hammer to cut bolts and Willis was standing in the "six foot" when the job began.

 "Q. And was he (Willis) standing right alongside of you? A. Right alongside. When we start work he was watching. I don't know what he was doing after that. I don't know."

 "Q. While you were there working, who was your boss? A. Why, George Willis was boss then. No is boss there, everybody help."

 He did not see the car until it was two feet away, then it hit him, and he just went over and knew nothing afterwards. He was standing between the rails and Myers was holding the punch and was standing outside the tracks while the witness was standing inside, swinging the sledge. He heard no warning from anybody before he was struck.

 Before giving his deposition and on his way to be place where it was taken, the witness stopped in at the office of Mr. Jones, the ...

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