Emilio Albergo v. Reading Company
372 F.2d 83
3rd Cir.
1966
Check Treatment

*1 Emilio ALBERGO judgment imposing the affirm should general sentence, cause or remand the v. resentencing on District Court COMPANY,Appellant. READING each count. No. 15489. imposes the District Court When indictment, multiple sentence count sepa highly that he deal is desirable Argued Feb. rately Benson with each count. See 19, 1966. Aug. Decided (5th States, F.2d 288 Cir. United 1964). Rehearing Denied Oct. 27,1967. March Certiorari Denied Swope, In McDowell See page 1960), Cir. this court stated 858: “ impos- practice of loose definitely sentence is discouraged.”

be appropriate at this a similar admonition. issue transcript proceedings im the time sentence was clearly

posed reveals the District

Judge punishment proper felt that upon appellant inflicted of which he convicted was

offenses eighteen incarceration for months. Such construing precludes

fact from us imposed

sentence to mean consecutive eighteen months each.

sentences imposed to

construction of the sentence term

mean a on each count sentence

equal eighteen one-eighth of months support imposed

finds no in the sentence sentencing pro transcript

ceedings. im sentence We construe the eighteen

posed to mean a term months count,

on each all to served concur

rently. For this reason conclude we purpose real would be served

manding this District Court resentencing, im since the sentence

posed on all counts far less than imposed

sentence which could been each Counts VII and VIII. parallels appears position It this point. taken other circuits States, supra, See fn. Benson United page F.2d. of 332 judgment appealed from af-

firmed. *2 Taylor, Philadelphia,

William Pa. J. (Morgan, Boekius, Philadelphia, Lewis & Pa., counsel, brief), appel- on lant. Beasley, Philadelphia, Pa. James E.

(Sheldon Albert, Philadelphia, Pa., L. brief), appellee. STALEY, SMITH, Before’ FREEDMAN, Judges. Circuit OPINION OF THE COURT SMITH, Judge. WILLIAM F. Circuit appeal This from a entered plaintiff in Employ- in an action under the Federal Liability Act, ers’ 51.1 U.S.C.A. § independent There are involved two separately. claims which must be treated injury an first is for sustained an July accident which occurred on the second is for an sus- tained in an accident which occurred applicability November 1961. The the Act is not FIRST CLAIM plaintiff employed by de- and, fendant as a conductor accident, engaged with his assembling gondola crew in a draft of cars which were be moved from one siding to another. cars These were load- pipe ed with sections which were lash- together by ed steel bands two inches coupling width. As the between locomotive and the lead car was effected snapped the bands and struck the plaintiff, standing who was lead near the car. important question for de evidence,

cision is whether the viewed lowing verdict, 1. At the close of the the adverse the defend judgment notwithstanding ant the defendant for a directed ver moved for moved favor; and, alternative, in its this was renewed evidence; and, fol a new trial. the close of all These motions were denied. gondola plaintiff, light the sides of cars but most favorable say had broken. unable warrant sufficient to recognize, one witness his While testified claim to first eighteen years experience must, “appraisal with the our as we narrowly railroad he had least proofs limited to seen break *3 reason, twice, single no as to what inquiry whether, evidence with the negli- may caused or the cir- to break drawn that conclusion the any they gence employer played cumstances under which testimony broke. The of the plaintiff’s fellow em- of which resulted the all” the occurrence ployees probative plaintiff’s injury. v. Mis- thus lacked value. the 500, 507, Co., 77 souri Pacific R. 352 U.S. plaintiff’s proofs The noth- established (1957). 448, 443, 493 1 L.Ed.2d S.Ct. injured more than that was as he Plainly, a of an was result accident. jury case “is test of a justify not of the submission proofs justify simply with whether the his first claim to the neg employer reason the conclusion that ligence slight any played part, the even SECOND CLAIM AND est, producing the GENERAL VERDICT sought.” Rogers damages are injuries minor plaintiff suffered 507, Co., supra, at Missouri Pacific R. 1961, was 17, he when on November may be 77 The evidence S.Ct. gon- gate of a by a defective end struck “to minimal it must be sufficient but ample that was dola car. There jury provide rational basis the with some was the negligence of the the negligence concluding of some that accident, and this proximate of the proximately railroad” contributed to the no However, we have is not Pennsylvania Rail the accident. Dessi v. jury’s knowing ver- way whether the of (3rd 149, Company, road 150 251 F.2d claim. solely on the second dict was based 967, Cir.1958), 78 cert. den. 356 U.S. S.Ct. charge, and of the conclusion At the Pennsyl 1006, Gill v. con- objections of counsel after the Cir.1953), Co., (3rd vania R. 201 F.2d 718 jury as the sidered, court instructed the 98 cert. den. 346 follows: may negligence L.Ed. 343. The issue jury, jury solely gentlemen of the on the not be submitted to the “Ladies and * * * you conjecture. point that out to ’I basis would bring for the you ain if do absolutely no evidence There was lump sum [plaintiff] in one it shall the the instant as to what caused case I covering factors example, band to break. For there damages— given you in the matter showing that the band was defective single lump clear?” sum. Is inadequate, improperly it was compliance instruction In with this attached, or manner in which that the returned any way pipes was in were secured any specifi- $23,100 without amount of breaking In related to of the band. decision as to its cation whether deed, it was not shown even claim, or or second on the first based anything railroad had do with the both. loading not of the cars. This would if it was lieve the defendant insuffi the evidence Since guilty negligent conduct which some of the first cient to warrant submission question, occurrence contributed jury, claim to the but from which it there was no evidence only if court below would be sustainable was. could have that it been inferred solely second on the verdict rested makes form of the verdict Several of the fellow em- ployees prior whether acci- for us to determine testified that to the second, dangling claim, on the first dent had seen bands rested gate damages, Where, here, concur in as ver- therefore

or both. of the court of two claims— reversal rest trial on supported and the award a new the evidence myself, must be would thereon the second claim. For other not —a award a trial on both claims. v. Nederlandsch- new reversed. Fatovic Stoomvaart, 275 F.2d Ameriaansche (2nd Cir.1960); American North U.S.App.D.C. Corp. Allan, Graphite (1950); Atlantic Tiller, 142 F.2d R. Co. Coast Line Cir.1944). would be trial in this case new *4 unnecessary Labor, had em WIRTZ, Secretary below if the court W. Willard Department Labor, procedures author ployed Appellant, Rules 49 of Federal ized Rule U.S.C.A., Procedure, Civil encourage designed the LOCAL facilitate and BOTTLE BLOWERS to GLASS UNITED ASSOCIATION OF the verdict, or, special alter use of a CANADA, AFL-CIO STATES AND accompanied native, (GBBA). interrogatories. specific to answers Nos. judgment will court below (1) with directions be reversed United States (2) claim; and entered on the first Argued Nov. new trial be had the second Decided Dec. Judge, (concur-

FREEDMAN, Circuit

ring dissenting part). that under the doctrine Co., 352 v. Missouri Pacific R. 77 S.Ct. enough (1957), be, meager

negligence, however require jury of

question on the first claim. of a number of broken existence period of time was permit that de- to conclude ship- required fendant should either have

pers stronger should have use bands or

inspected the bands which were used.

I therefore dissent from the direction for defendant be entered

on the first claim. would, however, reverse the grant

of the court a new trial judge

on the first claim trial because the

unduly defendant’s cross- restricted the damages examination and evidence

such an revers- extent that it constituted ible error. Since the segre-

both claims makes it