Grunenthal v. LONG ISLAND RAIL ROAD COMPANY

• Decision Date: 11 January 1968
• Docket Number: No. 142,Docket 31491.,142
• Parties: Carl F. GRUNENTHAL, Plaintiff-Respondent, v. The LONG ISLAND RAIL ROAD COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. T. F. CONTRACTING CO., Inc., Third-Party Defendant-Respondent.
• Court: U.S. Court of Appeals — Second Circuit

388 F.2d 480 (1968)

Carl F. GRUNENTHAL, Plaintiff-Respondent, v. The LONG ISLAND RAIL ROAD COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. T. F. CONTRACTING CO., Inc., Third-Party Defendant-Respondent.

No. 142, Docket 31491.

United States Court of Appeals Second Circuit.

Argued November 8, 1967.

Decided January 11, 1968.

Milford J. Meyer, Philadelphia, Pa. (Meyer, Lasch, Hankin & Poul, Philadelphia, Pa., and Irving Younger, New York City, on the brief), for plaintiff-respondent.

James T. Gallagher, Jamaica, N. Y. (George M. Onken, Jamaica, N. Y., on the brief), for defendant and third party plaintiff-appellant.

Thomas F. Cohalan, New York City (MacIntyre, Burke, Smith & Curry, New York City, on the brief), for third-party defendant-respondent.

Before LUMBARD, Chief Judge, and MEDINA and HAYS, Circuit Judges.

MEDINA, Circuit Judge:

In this FELA action a railroad employee, Carl F. Grunenthal, the acting foreman of a group of men engaged in the removal of a partially buried timber tie on railroad premises in the Queens Village Freight Yard of the Long Island Rail Road, has recovered a verdict of $305,000, the unamended complaint having sought damages in the sum of $250,000. The Railroad asserted a third-party claim against T. F. Contracting Co., Inc. that had for years furnished a boom truck and its driver for the purpose of moving railroad ties under similar conditions. The issue of liability was tried first and the jury found the negligence of the railroad caused the accident, without any contributory negligence by Grunenthal. The issues as between the railroad and the Contracting Company were reserved for later decision by the trial judge; and the second phase of the trial before the same jury resulted in a verdict for Grunenthal as above stated. Finally, the trial judge dismissed the third-party claim. On the railroad's appeal from plaintiff's judgment entered on the verdict we find no error in the conduct of the trial but remand for a new trial unless plaintiff agrees to remit the recovery in excess of $200,000, as the verdict is so grossly excessive as to call into play our power to control excessive verdicts. Dagnello v. Long Island R.R., 289 F.2d 797 (2d Cir. 1961). We affirm the judgment dismissing the third party claim of the Railroad against the Contracting Company. This phase of the case is governed by New York law. Ratigan v. N. Y. Central R.R., 291 F.2d 548 (2d Cir.) cert. denied New York Cent. R. Co. v. Interstate Commodities, 368 U.S. 891, 82 S.Ct. 144, 7 L.Ed.2d 89 (1961). The undisputed evidence makes it clear that at all relevant times the Railroad had complete control and direction of the driver and operator of the boom truck and of the entire operation of removing the partially buried timber tie. This is enough to settle the issue as between the Railroad and the Contracting Company. Ramsey v. N. Y. Central R.R., 269 N.Y. 219, 199 N.E. 65, 102 A.L.R. 511 (1935); Irwin v. Klein, 271 N.Y. 477, 3 N.E.2d 601 (1936). Moreover, as held by the trial judge, there is nothing in the record to support a finding of a common law or contractual obligation on the part of the Contracting Company to indemnify the Railroad. Accordingly, we shall make no further reference to this phase of the case.

I

In the Queens Village freight yard of the Long Island Rail Road there was a 20 foot embankment below which was an area with parked cars and people moving about. On top of this embankment and a few feet from the edge of the drop there was buried in the ground a 300 pound, 9 foot 6 inch timber tie with approximately 3 feet of the tie sticking out of the ground. The tie had been there for a long time and it had been used to fasten one end of a chain to protect the edge of the embankment.

On September 19, 1962 Grunenthal, a railroad trackman, as acting foreman had been given instructions by his superiors to remove the timber tie. The group of men under Grunenthal consisted of Michael Chindamo, a helper, and James Finley, the operator of the boom and the truck. Finley and the truck had been used for railroad work, together with railroad employees, on numerous previous occasions, pursuant to an arrangement with the Contracting Company. The three men were accustomed to work together. The customary way to remove an embedded tie was to slack the cable from the boom, fasten a pair of tongs on the projecting part of the tie, take up the slack on the cable until the teeth of the tongs became fastened on to the projecting part of the tie, then raise the tie until it was fully clear of the ground. This was step one of the customary procedure and all the witnesses agree that so far the operation proceeded without any unusual incident. The next step was to lower the cable so the tie could rest flat on the ground and give Grunenthal an opportunity to move the tongs over to the mid-section of the timber tie so that it would balance itself and facilitate the final movement of lifting the tie and placing it on the truck. Grunenthal testified that, after the timber tie was clear of the ground Finley kept lifting it higher instead of lowering it to the ground. As it went higher in disregard of Grunenthal's signal to stop, the unevenly balanced timber tie started to twist about in an eccentric manner and bumped against the side of the truck. As Grunenthal was endeavoring to control the timber tie as it flailed about, the teeth of the tongs lost their grip and the timber tie fell on Grunenthal's foot. The whole operation was necessarily conducted close to the edge of the embankment and whether Grunenthal's efforts to control the tie and to prevent possible injury to those below the embankment did or did not amount to contributory negligence was clearly a question of fact for the jury. For the same reason we must reject the Railroad's claim of contributory negligence in Grunenthal's failure to give the signal to stop by a movement of his arm at the height of his hip, according to Rule 3405 of the Railroad's Book of Rules. The jury were justified in believing Grunenthal's testimony that taking into account the relative positions of Grunenthal and Finley it was necessary to give the signal chest high to make it visible to Finley.

There was ample proof to sustain the verdict on the subject of liability without taking into account the favored position of plaintiffs in FELA cases. See Basham v. Pennsylvania R.R., 372 U.S. 699, 83 S.Ct. 965, 10 L.Ed.2d 80 (1963); Rogers v. Missouri Pacific R.R., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); McCann v. Smith, 370 F.2d 323 (2d Cir. 1966).

The Railroad also seeks a reversal, however, on the basis of an incident in a recess period during the trial. This occurred after Grunenthal had given his testimony concerning the falling of the timber tie. Grunenthal, again on the witness stand, said that Finley had come up to him and his wife and told them the accident happened just exactly as Grunenthal had testified. Finley denied he made this statement but admitted he talked with the Grunenthals "about the time we worked together." Finley did not dispute Grunenthal's statement that he was the one who started the conversation. We find nothing improper in Grunenthal's conduct. The motion for a mistrial was properly denied and we approve all the other rulings by the trial judge relative to this trivial occurrence.

A further contention by the Railroad, more or less connected with the incident just described, is that as Finley was impeached by the testimony of the Grunenthals to the effect that he had made a statement contradictory to his testimony on direct examination, it was error to refuse to admit into evidence a written statement by Finley long prior to the trial to the same effect as his testimony on direct examination. There was no error in ruling out the prior consistent statement. This is a perfect example of the common, garden variety of situation where the general rule excluding prior consistent statements should be applied. Clearly there was no abuse of discretion. Finley's motive at the time he signed the written statement, and at the time he testified on direct examination, and at the time he denied on cross-examination that he told the Grunenthals what they said he told them, was the same, namely to exonerate himself from blame for the accident. If prior consistent statements were received in evidence under these circumstances the basic facts would be buried in the confusion caused by the trial of collateral issues. See Alexander v. Kramer Bros. Freight Lines, Inc., 273 F. 2d 373 (2d Cir. 1959); Ryan v. United Parcel Service, Inc., 205 F.2d 362 (2d Cir. 1953).

We have examined with care the other points made on behalf of the Railroad and find none worthy of further discussion. Contentions by the Contracting Company are passed over without comment in view of our ruling that the third party claim was properly dismissed.

II

The amount of the verdict is so grossly excessive as to affect the entire case and require a new trial unless Grunenthal agrees within a...