The opinion of the court was delivered by: HARTSHORNE
In this suit under the Federal Employers' Liability Act, U.S.C.A. Title 45, § 51 et seq., brought by plaintiff, defendant railroad's crossing watchman, for silicosis alleged to have been suffered as a result of his employment by defendant, there was a verdict for defendant. Thereupon plaintiff moved for a new trial on the grounds: (1) that the verdict was so far against the weight of the evidence as to indicate passion, prejudice or mistake on the part of the jury, and that (2) the trial court erred in refusing one of plaintiff's requests to charge, at conference prior to delivery of the charge. However, that the charge of the Court was adequate generally, is evidence by the fact that neither counsel took any exceptions to the charge after its delivery.
The trial lasted a week and was closely contested. Because of the various issues, the Court, with counsel's consent, the issue of contributory negligence having been withdrawn, submitted interrogatories to the jury, in lieu of a general verdict, which, with their answers, were as follows:
'1. Is plaintiff suffering from silicosis?
'2. Did this silicosis result in whole or in part from his employment with the Lehigh Valley Railroad?
'3. If, and only if, the answer to both the above questions is yes, then was the railroad, or was it not, negligent as charged?
'4. If the answer to 3 is yes, then did same result naturally and proximately in Santoro's silicosis?
'5. If the answer to 4 is yes, then what is the amount of your verdict?
As to the first of the above grounds for the present motion, the question thus is solely whether there was evidence which would reasonably support the verdict. More specifically the question is, whether there was sufficient evidence for the jury to find that, while plaintiff had silicosis and this was due to his employment by the railroad, the railroad had yet exercised due care as to him. As to this there was ample evidence that the railroad had no reasonable ground to anticipate any danger to plaintiff from silicosis, and that consequently it had no reason to take special steps to protect Santoro, or to warn him, as to a danger which was not reasonably to be anticipated. As the Court charged, if 'they could not have anticipated it, they couldn't reasonably have been expected to do anything about it'. None of the several medical witnesses called by the railroad could recall ever having heard of a case of silicosis in a railroad crossing watchman. While plaintiff's medical witness claimed first that he had heard of one which he could not name, he later admitted that this, while a railroad man, was not a man at 'a railroad crossing'. In addition, there was ample evidence for the jury to conclude that the dust conditions were by no means as painted by plaintiff, if in fact they were noxious.
Nor did plaintiff attempt to prove that any other railroads took any of the steps to protect railroad crossing watchmen which plaintiff claimed showed defendant's lack of due care, same being the normal, though by no means all-inclusive, means of proving lack of due care. Hellweg v. Chesapeake & Potomac Tel. Co., 1940, 71 App.D.C. 346, 110 F.2d 546; Texas & Pacific Railway Co. v. Behymer, 1903, 189 U.S. 468, 23 S. Ct. 622, 47 L. Ed. 905; Beck v. Monmouth Lumber Co., E. & A. 1948, 137 N.J.L. 268, 59 A.2d 400. Of course were the railroad to have known, while it was employing plaintiff as a watchman, what it knows now, as a result of the verdict of this jury, as to this crossing watchman having suffered silicosis from his duties, then it could not claim that it could not have reasonably anticipated the danger of silicosis to its railroad crossing watchman. Under such circumstances, its failure to take the reasonably necessary ...