788 F.2d 1260 (7th Cir. 1986), 85-2137, Davis v. Consolidated Rail Corp.

Docket Nº:85-2137, 85-2157.
Citation:788 F.2d 1260
Party Name:Lonny DAVIS, Plaintiff-Appellee, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant, Third-Party Plaintiff-Appellee, v. TRAILER TRAIN COMPANY, a corporation, Third-Party Defendant-Appellant.
Case Date:April 17, 1986
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1260

788 F.2d 1260 (7th Cir. 1986)

Lonny DAVIS, Plaintiff-Appellee,



Third-Party Plaintiff-Appellee,


TRAILER TRAIN COMPANY, a corporation, Third-Party Defendant-Appellant.

Nos. 85-2137, 85-2157.

United States Court of Appeals, Seventh Circuit

April 17, 1986

Argued Feb. 11, 1986.

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John B. Gunn, Walker & Williams P.C., Belleville, Ill., Barry L. Kroll, Williams & Montgomery, Ltd., Chicago, Ill., for defendant-appellant, third-party plaintiff-appellee.

Mark E. Goodman, Rosenblum, Goldenhersh, Silverstein & Zafft, Claton, Mo., for plaintiff-appellee.

Before CUDAHY and POSNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

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POSNER, Circuit Judge.

This is a personal injury suit under the diversity jurisdiction; the substantive issues are governed by the tort law of Illinois. The suit arises from an accident that occurred in 1983. The plaintiff, Davis, was 33 years old at the time, an experienced railroad worker who for the past six years had been employed as an inspector of cars by the Trailer Train Company, a lessor of piggyback cars to railroads. He made the inspections in railroad yards, among them Conrail's marshaling yard in East St. Louis. On the day of the accident, Davis, driving an unmarked van that was the same color as the Conrail vans used in the yard but that lacked the identifying "C" painted on each Conrail van, arrived at the yard and saw a train coming in from east to west. He noticed that several of the cars in the train were Trailer Train cars that he was required to inspect. The train halted, and was decoupled near the front; the locomotive, followed by several cars, pulled away to the west. The remainder of the train was stretched out for three-quarters of a mile to the east; and because it lay on a curved section of the track, its rear end was not visible from the point of decoupling. An employee of Conrail named Lundy saw Davis sitting in his van, didn't know who he was, thought it was queer he was there, but did nothing.

Shortly afterward Davis began to conduct the inspections. This required him to crawl underneath the cars to look for cracks. One of the cars was the third from the end (that is, from the point where the train had been decoupled). Unbeknownst to Davis, a locomotive had just coupled with the other (eastern) end of the train. It had a crew of four. Two were in the cab of the locomotive. The other two, one of whom was designated as the rear brakeman, were somewhere alongside the train; the record does not show just where, but neither was at the western end of the train, where Davis was. The crew was ordered to move the train several car lengths to the east because it was blocking a switch. The crew made the movement, but without blowing the train's horn or ringing its bell. The only warning Davis had of the impending movement was the sudden rush of air as the air brakes were activated. He tried to scramble to safety before the train started up but his legs were caught beneath the wheels of the car as he crawled out from under it. One leg was severed just below the knee; most of the foot on the other leg was also sliced off. The train had not been "blue flagged." It is law (49 C.F.R. Sec. 218) as well as custom in the railroad industry that whenever work is being done on a train a blue metal flag be placed at either end to warn employees not to move the train. Though well aware of the custom, Davis had neither blue flagged the train before crawling under it nor asked an employee of Conrail to blue flag it.

Davis brought this suit against Conrail, charging negligence. Conrail impleaded Trailer Train, seeking contribution in the event it had to pay damages to Davis, on the ground that Trailer Train had been negligent in failing to instruct Davis in proper safety procedures. A jury found for Davis, assessed damages at $3 million, but found that Davis's own negligence had been one-third responsible for the accident, and therefore awarded damages of $2 million. In Conrail's third-party suit against Trailer Train, which had been tried with the main claim, the jury held that Trailer Train had been one-third responsible for the accident; it therefore ordered Trailer Train to reimburse Conrail for one-third of the $2 million in damages. Conrail and Trailer Train appeal. Conrail argues that it was not negligent at all (which if correct would mean that Davis was entitled to zero damages) but that if it was, still the reduction in its liability of only one-third shows that the jury was carried away by "passion and prejudice," so that there should be a new trial, or at the least a reduction in Conrail's share of the damages vis-a-vis Davis. Trailer Train argues that it was not negligent even if Conrail was, and therefore it should not have to pay any part of the damage award.

Neither appellant challenges the $3 million price tag that the jury put on Davis's

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injury, although Davis is able to walk with the aid of prosthetic devices, to drive, to work, and in short to lead almost a normal life. Of course the loss of a leg is a terrible disfigurement, especially for a young man, and a substantial award of damages would therefore be entirely justified even without any evidence of pain (and there was evidence of severe though transitory pain) or reduced longevity. But $3 million--only $170,000 of which represents lost earnings and past and future medical expenses--may well be excessive; and although appellate review of the amount of damages awarded by a jury or trial judge is highly deferential, we and the other courts of appeals have not hesitated to cut down grossly excessive damage awards. See, e.g., Joan W. v. City of Chicago, 771 F.2d 1020, 1025 (7th Cir.1985); Douglass v. Hustler Magazine, Inc., 769 F.2d 1128, 1144 (7th Cir.1985); Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 972-74 (7th Cir.1983); Dixon v. International Harvester Co., 754 F.2d 573, 590 (5th Cir.1985); Harper v. Zapata Off-Shore Co., 741 F.2d 87, 91-93 (5th Cir.1984); Shaw v. United States, 741 F.2d 1202, 1210 (9th Cir.1984); Stratis v. Eastern Air Lines, Inc., 682 F.2d 406, 415 (2d Cir.1982). But as we have said, the defendants have not asked us to do that here.

The defendants do complain, however, that the jury allocated too small a share of responsibility for the accident to Davis. They ask us to order either a remittitur or a new trial limited to damages, but alternatively they argue that the jury's allocation shows that the jury was carried away by passion and prejudice, so that a new trial on liability as well as on damages should be ordered. See Douglass v. Hustler...

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