McGRATH v. PHILADELPHIA & R. RY. CO.

McGRATH v. PHILADELPHIA & R. RY. CO. (Circuit Court, E. D, Pennsylvania. November 10, 1909.) No. 336. Railroads (§ 350) — Action for Injury at Crossing — Questions for Jury. In an action against a railroad to recover for an injury to a person at a crossing, where there was conflicting evidence on the questions of defendant’s negligence and plaintiff’s contributory negligence, the fact that the weight of evidence may be with defendant does not justify the withdrawal of the case from the jury. [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*] At Law. Action by Theresa McGrath against the Philadelphia & Reading Railway Company. On motion by defendant for judgment notwithstanding the verdict. Motion denied. See, also, 166 Fed. 332. Oscar H. Price, P. P. Conway and John M. Vanderslice, for plaintiff. Wm. Clarke Mason, for defendant. For other casos see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes [MAJORITY — J. B. McPHERSON, District Judge.] J. B. McPHERSON, District Judge. The defendant has not moved for a new trial, being content to accept the verdict, if the plaintiff’s case was strong enough to-require submission at all. I have therefore examined the testimony from that standpoint, with the result that I do not see how the questions of the defendant’s negligence and of the plaintiff’s contributory negligence could have possibly been withdrawn from the jury. It may be conceded that the weight of the evidence was perhaps with the defendant; but that is not material in considering the present motion. It would be useless to spend time in discussing the conflicting testimony, and I shall confine myself, therefore, to.the statement that in my opinion there is sufficient direct and positive testimony in support of the plaintiff’s claim to prevent the court from undertaking to decide the two vital questions for itself. The motion for judgment notwithstanding the verdict is refused, and to this refusal an exception is sealed in favor of the defendant.