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April 3, 1975

ROSHAN L. MEHRA, as Administrator of the Goods, Chattels and Credits which were of RAJINDER K. MEHRA, Deceased, Plaintiff,

The opinion of the court was delivered by: PLATT

PLATT, District Judge.

 Defendants move pursuant to Rule 50(b) and (c) of the Federal Rules of Civil Procedure for a judgment notwithstanding a jury verdict in favor of the plaintiff in the amount of $10,000 on plaintiff's first claim and $69,500 on plaintiff's second claim on the grounds that: (i) there was no evidence of negligence on the part of the defendants, and (ii) plaintiff's intestate was guilty of contributory negligence as a matter of law.

 At the close of the evidence offered by the plaintiff and at the close of all of the evidence defendants moved to dismiss on the foregoing grounds and the Court in each case reserved decision.

 In the alternative, defendants move pursuant to Rule 59 of Federal Rules of Civil Procedure for a new trial on the following grounds:

(i) The verdict was contrary to the weight of the credible evidence.
(ii) The charge of the Court with respect to a reduced burden of proof on behalf of the plaintiff was erroneous under applicable Pennsylvania Law.
(iii) The charge of the Court with respect to the burden of proof necessary on behalf of the defendant on the issue of contributory negligence was in variance with Pennsylvania Law.
(iv) The verdict as rendered was so grossly excessive as to indicate a lack of proper deliberation on behalf of the jury and as such mandates the granting of a new trial.
(v) The weight of the evidence in the findings of the jury are so incompatible as to mandate a new trial.

 Plaintiff's complaint was divided into two claims, the first for conscious pain and suffering (for which the jury awarded $10,000) and the second for support payments for his parents (for which the jury awarded $67,000) and funeral expenses (for which the jury awarded $2,500).

 This is the second trial of this case; the first having occurred before U.S. District Judge Orrin G. Judd and a jury in November, 1973, at the conclusion of which the jury returned a verdict for the defendants.

 During the course of the first trial, evidence was inadvertently admitted which indicated that plaintiff's intestate's life was insured under a life insurance policy for $100,000.; the beneficiaries of which were the plaintiff and his spouse (the deceased's parents). Even though Judge Judd instructed the jury during the course of trial and in his charge that they should disregard this evidence, he apparently felt that such admission was so prejudicial to the plaintiff as to require him to set aside the verdict for the defendants and order a new trial. Accordingly, the case came on for trial before this Court in February, 1975, and, as indicated, the second jury reached a diametrically opposed verdict.

 On the instant motions the Court is required, of course, to view the evidence in the light most favorable to the plaintiff. Lebrecht v. Bethlehem Steel Corp., (2d Cir. 1968) 402 F.2d 585; Wenhold v. O'Dea, 338 Pa. 33, 35, 12 A.2d 115.

 In this light, the facts are that Rajinder K. Mehra, age 32 years, was struck and fatally injured on April 5, 1972 at approximately 11:15 PM by an automobile driven by Rudolph J. Bentz, Jr. and owned by then Roberta Lintz (now Bentz) who was then the six year fiancee of (and is now the wife of) Rudolph J. Bentz, Jr.

 The automobile, a small Volkswagen, was travelling north on Route 309, a four-lane, divided, limited access highway in Salisbury, Pennsylvania, and at a point approximately 500 feet north of an access known as Cedarcrest Boulevard the accident occurred. As indicated, Route 309 consists of two lanes north and two lanes south and is separated by a center divider. There were no other cars on any of the four lanes; there were no eye witnesses and there were no lights except for the headlights on defendants' Volkswagen which were lit.

 The defendant Rudolph Bentz, Jr. testified (and his testimony was corroborated by his wife and in part by his former professor) that he and his fiancee had had dinner at the home of his former Professor Rabot; that he had had two cocktails during the hour or so before a 7 PM dinner, a glass of beer with dinner, and coffee after dinner; that his fiancee and he had started for their homes at approximately 10:45 PM in her Volkswagen which he was driving; that they had turned on to Route 309 and were proceeding northbound in the right-hand lane at a speed of approximately 55 miles per hour; that the speed limit on such highway was 60 miles per hour; and that he was looking and observing the roadway in front of him as lit up by the VW's headlights. There was no ...

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