Bennett v. Denver & Rio Grande Western R. Co.

• Decision Date: 03 January 1950
• Docket Number: No. 7287,7287
• Citation: 117 Utah 57,213 P.2d 325
• Court: Utah Supreme Court
• Parties: BENNETT, v. DENVER & RIO GRANDE WESTERN R. CO.

Page 325

213 P.2d 325

117 Utah 57

BENNETT, v. DENVER & RIO GRANDE WESTERN R. CO.

No. 7287.

Supreme Court of Utah.

Jan. 3, 1950.

Van Cott, Bagley, Cornwell & McCarthy, Salt Lake City, for appellant.

Rawlings, Wallace & Black, Salt Lake City, for respondent.

LATIMER, Justice.

The first part of this opinion is concurred in by all members of the court. The latter part dealing with excessive damages is concurred in by the Chief Justice only, so that the views expressed and the action taken by Mr. Justice Wade, Mr. Justice Wolfe, and Mr. Justice McDonough require an affirmance of the judgment.

This case involves an appeal and cross-appeal from a judgment for damages suffered by respondent while he was employed by appellant as a head brakeman. The cause of action is founded on the rights and liabilities created by the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. The jury in assessing damages awarded respondent $70,000.00, but found his negligence contributed to his injury and diminished the amount by $20,000.00, thereby making the net verdict $50,000.00.

Appellant does not question the sufficiency of the evidence to establish its negligence but in his cross-appeal respondent challenges the jury's finding that he was negligent. Respondent's cross-appeal and assignment of error requires a resume of the testimony and will be disposed of first. The facts necessary to dispose of appellant's contentions will be detailed as each assignment is later considered.

The accident occurred at about 8:30 p. m. on January 7, 1948, in appellant's yard at Buena Vista, Colorado. Respondent was working as head brakeman on an eastbound freight train which consisted of a four unit diesel engine and sixty freight cars. Most of the cars were left on the main line track while switching operations were carried on in the yard. After a number of switching operations, the train consisting of 14 cars, was located on what was known as the stock or ice house track. Just prior to the time of the last movement of the train, respondent stationed himself in the center and on top of the last car as, according to him, this was the safest position from which he could give the necessary signal. He gave the engineer the lantern signal to move forward and the train moved out to the south. According to respondent's version, the train rapidly picked up speed and at the time he was jolted off was moving at a rate of speed from 12 to 15 miles per hour.

Respondent was required to line the main line switch and preparatory to this he moved forward on top of the car. He was carrying a lantern and brake club. He approached the front end of the car and crouched down to take hold of the grab iron. While in the process of crouching, by what respondent described as 'the slack running in causing a violent jerk' he was thrown to the ground and the last car of the cut ran over him causing the injuries which will be referred to later.

The cut of cars was moving down a track which had two curves in it between the place where the train started and the place where respondent needed to be on the ground to throw the switch. Respondent was familiar with the track, knew the presence of the curves, knew that when travelling on a curve there is a lurching and wobbling of the cars and knew the lurching and wobbling would increase in severity. Respondent was a seasoned brakeman and was familiar with slack action.

The United States Supreme Court has in its recent decisions announced the rule that if there exists any evidence from which negligence might be fairly inferred, the question is one for the determination of the jury even though the jury's verdict involved speculation and conjecture. We quote from the case of Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 744, 90 L.Ed. 916: 'It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.'

The same rule should be applied against the employee and if from the evidence in this case the jury could fairly infer that the respondent did not use due care in his movements on top of the car then we are not at liberty to set aside its findings.

Respondent was the only witness to his own activities and the jury is permitted to consider his interest in evaluating his testimony. Considering those portions of his testimony favorable to appellant the jury could find that respondent left the position that he considered the safest to proceed to a more dangerous position at a time when the car was entering a curve on the track and when there would be a lurching and wobbling. He could have waited until the car was on the straight-of-way and carried out his duties without delay. He knew the train was travelling at a fast rate of speed for that movement and yet he made no effort to signal the engineer to slow down although his duties required him to control the movement of the train. He knew the faster the train went around the curve the more pronounced would be the forces to hurl him from the car and he knew that the slack action would be more severe than if the train were moving more slowly.

With these facts to deal with the jury could fairly infer that respondent did not use due care for his own safety and diminish his damages in the proportion in which his negligence contributed to his injuries.

Appellant seeks a reversal upon three assigned grounds of error. The first is that the trial court erred in permitting exhibit G 'Computation of Present Value of Monthly Income based on American Experience Mortality Tables' in evidence; second, that the trial court erred in admitting exhibit H, a similar table based on United States Department of Commerce Life Tables; and third, the verdict is excessive and resulted from passion and prejudice on the part of the jury.

We shall treat the first two assignments of error together. We have held in a number of recent cases that exhibits similar to exhibits G and H are admissible in evidence. See Pauly v. McCarthy et al., 109 Utah 398, 166 P.2d 501; Schlatter v. McCarthy, Utah, 196 P.2d 968. Appellant concedes this now to be the law in this jurisdiction but founds its present assignments of error on the proposition that a proper foundation was not laid to permit their introduction in evidence.

Verdicts are reaching high levels and counsel in their attempts to establish excessive damages contend that the improper use of these tables by jurors contribute to the astronomical amounts. Even if the assumption made was correct, it would not render the tables inadmissible as the information set out merely furnishes the jury a convenient method of diminishing a present lump sum verdict so as to more accurately estimate an injured person's pecuniary loss and give credit for the earning power of the money obtained.

We see no reason for any one now contending that the American Experience Mortality Tables do not give a usable estimate on the probable duration of a person's life. If we use respondent's expectancy of 457 months as established by these tables and use his earnings as $250.00 per month and assume he has been totally disabled, he has suffered a loss of income over that period of $114,250.00. If the jury awarded him that amount for loss of income he would be granted an amount, which if converted into sound investments, would exceed the total amount of his actual loss. Accordingly, the trial court instructed the jury as follows:

'If you find the issues in favor of the plaintiff, and award him damages, then, with respect to the plaintiff's alleged loss of earning power he would not be entitled to recover as a lump sum at present the total accumulations of such loss of earnings over the entire period of such disability, but such sum, if any, awarded, must be reduced or discounted on the basis of a fair rate of interest or return on such sum.

'It is for you to determine from a preponderance of the evidence what rate of interest or return could fairly be expected from safe investments which a person of ordinary prudence, but without any particular financial experience or skill could make, and reduce or discount said sum at such fair rate of interest or return as you thus determine.'

That is an appropriate instruction and for respondent's benefit. However, it is almost impossible for a juror to calculate an appropriate reduction or discount without the assistance of a mathematically computed table. It might be done in a rough manner but there is no reason why a jury should not be furnished with a means of doing it accurately. That is the sole legitimate purpose of the chart.

Were we convinced that there was a consistent injustice to defendants and that jurors were confused and misled by these tables we might be called upon to reverse our previous holdings. However, the fact that verdicts have increased in amounts over the years is not evidence that the juries have been confused and misled by the tables. Neither do such increases appear to be chargeable to a set of figures included in tables of computations. Perhaps the low purchasing power of money, the economic trends, a better understanding of the damages suffered and a realization that industry and not the state should bear...