Bowers v. Pennsylvania Railroad Company

• Decision Date: 19 February 1960
• Docket Number: Civ. A. No. 2073.
• Citation: 182 F. Supp. 756
• Parties: Samuel L. BOWERS, Plaintiff, v. PENNSYLVANIA RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — District of Delaware

182 F. Supp. 756

Samuel L. BOWERS, Plaintiff, v. PENNSYLVANIA RAILROAD COMPANY, Defendant.

Civ. A. No. 2073.

United States District Court D. Delaware.

February 19, 1960.

James P. D'Angelo, Wilmington, Del., and Charles A. Lord (of Richter, Lord & Levy), Philadelphia, Pa., for plaintiff.

C. W. Berl, Jr., (of Berl, Potter & Anderson), Wilmington, Del., for defendant.

LAYTON, District Judge.

This was an accident case under the F.E.L.A. in which the jury awarded the plaintiff $25,100 damages for injuries suffered on December 30, 1955, in the course of his employment with the defendant. There was strong evidence of original negligence on the part of the defendant's servants and it was clear that the injuries were serious and, for a considerable period of time, acutely painful. The plaintiff, a 42 year old married man with two children, was directing the lifting of a 3,000 lb. piece of machinery which knocked over a similar piece of machinery upon plaintiff. His leg turned black from hip to ankle and swelled badly. He was treated 23 times by the defendant's doctor. On several occasions, a swelling half the size of a football appeared on his leg and had to be lanced, disgorging great quantities of brownish blood. While he continued at his job during this period, he was in considerable pain, was assigned limited work and was permitted to be driven by his wife directly to the building where he worked. It could be reasonably concluded that because of his pain, discomfort and inability to pursue his usual activities that his normal family life was seriously disturbed for at least a substantial period after the accident.

There was evidence from which it could be believed that the plaintiff's pain and suffering decreased towards the latter part of the second year following the accident but his leg remained very painful to touch. Prior to 1959, he was examined by Dr. Taylor who diagnosed a causalgia (a very serious if not fatal condition) as the result of which in August, 1959, he submitted to a major operation known as a sympathectomy. The operating technique consisted of opening the plaintiff from the front, going through all the muscles, tissue, etc., to the spine and cutting the sympathetic nerves. It is a major operation. Plaintiff was hospitalized two weeks and there is testimony that six months or more might be required for a full recovery. Hospital costs and actual loss of wages to the time of trial were $2,900. He had not returned to work at the time of trial. It should be mentioned in passing that also as the result of this accident, plaintiff suffered a cut on the forehead which caused some pain due to a nerve injury. This discomfort can be cured by a minor operation. Finally, there was testimony from which a jury could believe that the plaintiff is now suffering from a permanent, herniated disc and that this accident was, at least, a contributing reason for this condition.

The defendant advances three reasons for a new trial. First, it argues that the verdict was excessive. Of course, the defendant thinks it was. The plaintiff, on the contrary, thinks it was too little. My own reaction was that it was not only not shocking but, to the contrary, probably fair. In any event, the verdict falls very far short of a figure which would justify a Court's interference under the generally accepted principles governing excessive verdicts. See Jones v. Atlantic Refining Co., D.C.E.D. Pa., 55 F.Supp. 17; Armit v. Loveland, 3 Cir., 115 F.2d 308, 314.

Secondly, the defendant assigns as error the Court's failure to charge the jury to the effect that the plaintiff had the burden of proving that the accident caused the injuries complained of. The specific request reads, "As to the last of these defendant requests the inclusion of a separate and distinct paragraph charge that plaintiff has the burden of proving that the accident in question, within the realm of reasonable probability, caused the injuries of which plaintiff now complains."

The Court charged:

"To repeat, then, in order to find the defendant liable, you must first find that it was negligent in some one or more of the respects complained of and that such negligence contributed to or helped to contribute in some degree to plaintiff's injuries." (My emphasis)

The Court also stated:

"This suit is based upon the Federal Employers Liability Act 45 U.S.C.A. § 51 et seq. which, insofar as pertinent here, provides in effect that every railroad while engaged in interstate commerce shall be liable in damages to any employee suffering injuries resulting in whole or in part from the negligence of the railroad * * *." (My emphasis) Again, it was charged:

"The mere fact that you may find that the defendant was negligent in one or more of the respects charged would not render the defendant liable unless you should further find that this negligence contributed, no matter how slightly, to the injuries complained of." (My emphasis)

In several other parts of the charge this thought was expressed in various ways and it is submitted that an average jury must have realized that it could not award damages for an injury which was not the result of the accident.

But in any event, it is clear from a review of the evidence that there was no issue in the case as to the lack of a causal connection between the negligence and the injuries and that the Court would have been justified in denying the requested charge on this latter ground alone. First, it is admitted that the plaintiff suffered very serious injuries to his leg as...