635 F.2d 1165 (5th Cir. 1981), 80-1390, Gallimore v. Missouri Pac. R. Co.

Docket Nº:80-1390
Citation:635 F.2d 1165
Party Name:Kelly GALLIMORE, Plaintiff-Appellant, v. MISSOURI PACIFIC RAILROAD CO., Defendant-Appellee.
Case Date:February 05, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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635 F.2d 1165 (5th Cir. 1981)

Kelly GALLIMORE, Plaintiff-Appellant,



No. 80-1390

Unit A

United States Court of Appeals, Fifth Circuit

February 5, 1981

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Michael D. Cucullu, Bellaire, Tex., for plaintiff-appellant.

Eduardo R. Rodriguez, Brownsville, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GEE, RUBIN and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

Plaintiff-Appellant Kelly Gallimore brings this appeal from a take-nothing judgment in the court below in his suit for damages, brought under the Federal Employers Liability Act (FELA), 45 U.S.C. §§ 51-60 (1976). The first jury to hear the case found that Defendant-Appellee Missouri Pacific Railroad Company (MoPac) was not negligent, but that Gallimore's own negligence was responsible for only 80% of his injuries; it assessed damages at $60,000. The district court believed this to be an inconsistent verdict, and granted a new trial.

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Upon retrial, a second jury found both parties to be negligent, with each party's negligence assessed at 50% of the total; damages were assessed at.$390,000. Gallimore duly moved for judgment based on the second jury verdict. Contrary to the decision of the district judge who presided over the first trial, however, and to its own ruling on an earlier motion by MoPac for reconsideration of the new trial order, the court held that the first jury's findings were not inconsistent. Accordingly, it entered a take-nothing judgment that was based on the first jury's verdict.

Though the record, encompassing two separate trials, is lengthy, the questions presented on appeal are purely procedural. We affirm.


Gallimore was employed as a brakeman by MoPac on December 22, 1976, at the Brownsville, Texas, railroad yard when he was injured in an accident involving the coupling of two trains. At both trials, the factual issues concerning the accident were contested, as were the source and extent of Gallimore's injuries. There was testimony from expert witnesses for MoPac at both trials to the effect that Gallimore was suffering from spondylolysis a congenital defect of the back that might have been responsible for some of his damages.

On March 22, 1978, at the close of the first trial, the jury returned its verdict by means of special interrogatories. 1 It found that Gallimore was injured on the date in question, but that MoPac was not negligent in any respect. It further found that Gallimore was negligent, and that his negligence caused or contributed to the injuries he suffered. When asked to express as a percentage the extent to which Gallimore's negligence contributed to his injuries, it

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answered 80%. 2 Finally, the jury found that $60,000 would fairly compensate Gallimore for the injuries he suffered on December 22, 1976. 3

Immediately after the verdict was received, the court speculated outside the jury's presence that there might be an inconsistency between the jury's answers to the special interrogatories. Specifically, it noted that while the jury had found that Gallimore's negligence had contributed to only 80% of his injuries, it also found that MoPac was not negligent:

Well, I don't know whether anybody has ever run into this thing, but I would imagine if the railroad was not negligent there's no way this man can recover, regardless what other answers they have, and I was just thinking out loud. It seems to me there would be a conflict. If they said his negligence contributed 100%, well, it would have been a different story, but there's a little hiatus here of 20%.

Both counsel agreed to brief the question of whether there was a conflict between the jury's findings, and the jury was discharged.

Later, Gallimore formally moved for a new trial, or, in the alternative for entry of judgment in his favor in the amount of $60,000; MoPac moved for entry of a take-nothing judgment based on the jury's finding that MoPac was not negligent. On August 26, 1978, the court granted Gallimore's motion for a new trial on the ground that there was an irreconcilable conflict in the jury's answers to the interrogatories:

It is the opinion of this Court that the Jury's answer to Interrogatory No. 6 (the extent to which Gallimore's negligence contributed to his injuries), when viewed in the light of the instructions given the Jury concerning it in Interrogatory No. 7 (the amount of money damages that would compensate Gallimore for his injuries), obscures the clean line drawn by their finding in Interrogatory No. 2 of no negligence, and consequently presents this Court with a conflict in the Jury's answers.

Accordingly, by Order entered of even date herewith, a new trial will be granted to the Plaintiff.

The court subsequently amended its order upon motion by MoPac to include the requisite certification for an interlocutory appeal under 28 U.S.C. § 1292(b) (1976), but this court, by unpublished order dated October 25, 1978, denied MoPac's petition for permission to bring the interlocutory appeal. 4

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On July 11, 1979, as the parties were preparing for the second trial, the case was transferred to a different district judge. MoPac moved the court to reconsider its order granting the new trial and denying MoPac's motion for entry of judgment based on the first jury verdict, and reurged that motion again just prior to the beginning of the second trial; in both instances, however, the motion was denied.

On January 15, 1980, at the conclusion of the second trial, the second jury rendered its verdict, again by special interrogatories. It found that MoPac was negligent and that its negligence was a cause of Gallimore's accident. It also found that Gallimore was negligent and that his negligence was a cause of his accident. When asked to express as a percentage the extent to which Gallimore's negligence contributed to the accident, it answered 50%. Finally, it assessed damages at.$390,000. The court discharged the jury, after which counsel for Gallimore moved for entry of judgment based on the second jury's verdict. 5

Subsequently, MoPac filed a motion that it styled "Motion for Judgment Non Obstanti Verdicto; Alternatively Motion for Remittitur; Alternatively Motion for New Trial Pursuant to Rules 50 and 59 of the Federal Rules of Civil Procedure." As one ground for the motion for judgment notwithstanding the verdict, MoPac reurged its argument that judgment should have been entered in its favor based on the first jury's finding that MoPac was not negligent. Gallimore's responding memorandum vigorously

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contested all of MoPac's motions and the various grounds therefor, and urged again that judgment should be entered based on the second jury's verdict.

The court, by an unpublished memorandum and order dated March 20, 1980, first denied MoPac's motions for a new trial or a remittitur, holding that there was sufficient evidence to support each of the second jury's findings and that the damages awarded were within the universe of possible awards that were supported by the evidence. It then concluded, however, that in light of this court's decision in Willard v. The John Hayward, 577 F.2d 1009 (5th Cir. 1978), "the new trial was improvidently granted" because the first jury's answers to the special interrogatories were not in fact inconsistent. The court therefore held that MoPac's motion for judgment n. o. v., insofar as it was "based upon the verdict in the first trial, should be granted and judgment will be entered for the Defendant that Plaintiff take nothing." The resulting judgment for MoPac was entered by means of a separate document on the same day, and Gallimore brought this appeal.


  1. Did the Court Have the Power to Reconsider Its Order Granting a New Trial?

    The appellations that attend motions under the Federal Rules of Civil Procedure are many and varied. In this case, for example, it would seem that MoPac's motion after the second trial could variously be described as a motion for judgment notwithstanding the (second) jury verdict, or as a motion for the court to reconsider its earlier grant of a new trial and instead to enter judgment based on the first jury's verdict. This court is "not bound by the label the district court puts on its action where underlying facts indicate that a different action was in fact intended." Williamson v. Tucker, 632 F.2d 579, 587 (5th Cir. 1980). As a conceptual matter, we think it more appropriate to characterize the court below's action as a reconsideration of its earlier order that granted Gallimore a new trial and denied MoPac's motion for entry of a take-nothing judgment based on the first jury's verdict. The court's opinion clearly indicates that there was nothing in the second trial or the second jury's verdict that, standing alone, would justify disregarding that verdict. Rather, the court decided that it had erred in each of its previous rulings (1) that the first jury's verdict was inconsistent, (2) that a new trial should be granted, and (3) that MoPac's motions for judgment based on the first jury's verdict should be denied. This, it seems to us, necessarily must be characterized as the grant of a motion to reconsider, rather than the grant of a judgment n. o. v. 6

    The question remains whether the district court had the power to reverse its earlier order granting a new trial. Neither party has cited, and our own research has not revealed, Fifth Circuit precedent on this precise point. 7 Nevertheless, we agree completely with the position taken by the United States Court of Appeals for the Ninth

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    Circuit in Bateman v. Donovan, 131 F.2d 759, 764 (9th Cir. 1942), and United States ex rel. Greenhalgh v. F. D. Rich Co., 520...

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