McDonald

Plaintiff Richard McDonald appeals from a judgment on special verdict in favor of defendant Southern Pacific Transportation Company, and from an order denying his motion for judgment notwithstanding the verdict, in a suit for personal injuries under the Federal Employers’ Liability Act ( 45 U.S.C. § 51 et seq.; FELA). He contends that the evidence was insufficient to support the verdict, and that a new trial is in any event required because of prejudicial jury misconduct. We conclude that the showing of misconduct requires a new trial, but that the evidence did not warrant grant of judgment notwithstanding the verdict.

Facts

The accident that gave rise to this action occurred on the morning of October 21, 1991, at defendant’s Los Angeles intermodal container transfer yard (yard), at which cargo containers are transferred between trailer trucks and railcars. Plaintiff was employed by defendant as a brakeman, working with Engineer Edward Fitzgerald and Conductor Victor Brown in assembling a freight train by backing (“shoving”) a group or “cut” of railroad cars from an adjacent yard. Fitzgerald ran the locomotive that shoved the cars, while plaintiff and Brown operated…