Cardwell v. Chesapeake & Ohio Railway Co

504 F.2d 444 (1974)

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Nature of the Case

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Facts

Cardwell (P) filed a FELA complaint against D for back injuries. After the answer was filed and some depositions were taken, a suggestion of P's death was filed, and P's widow filed an amended complaint alleging that P's death was the result of the accident pleaded in the original complaint. The trial took place and D's motion on a directed verdict after the trial was finished was reserved. The case was submitted to the jury requiring separate verdicts for the back injury incurred and the death. The jury assessed damages for the back injury at $10,500 but could not agree whether the death resulted from D's negligence. D filed a motion for judgment notwithstanding the absence of a verdict on the wrongful death claim and judgment n.o.v. on the injury claim or for a new trial on the injury claim. The court overruled the motion but certified the issue of proximate cause between the injury and the death for review. The court used section 1292(b) in that the issue was a controlling question of law, there was a substantial ground for differences of opinion, and an immediate appeal would materially advance the ultimate termination of litigation.