Bullard v. Central Vermont Ry., Inc., s. 77-1298 and 77-1299

Decision Date18 November 1977
Docket NumberNos. 77-1298 and 77-1299,s. 77-1298 and 77-1299
PartiesMildred T. BULLARD, Administratrix, et al., Plaintiffs, Appellees, v. CENTRAL VERMONT RAILWAY, INC., Defendant, Appellant, and Robert W. Meserve et al., Trustees, Defendants, Appellees. Harry A. GONYER, Plaintiff, Appellee, v. CENTRAL VERMONT RAILWAY, INC., Defendant, Third-Party Defendant and Third-Party Plaintiff, Appellant, and Robert W. Meserve et al., Trustees, Defendants, Third-Party Defendants and Third-Party Plaintiffs, Appellees.
CourtU.S. Court of Appeals — First Circuit

Richard E. Bachman, Boston, Mass., with whom Timothy H. Donohue, and Hale, Sanderson, Byrnes & Morton, Boston, Mass., were on briefs, for appellant.

Robert R. Harrington, Boston, Mass., with whom Thomas D. Burns, and Burns & Levinson, Boston, Mass., were on brief, for Robert W. Meserve et al., defendants, appellees.

Robert P. Malone and Malone, McCarthy & Hunt, Boston, Mass., on brief, for Harry A. Gonyer, plaintiff, appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, CRARY, District Judge. *

LEVIN H. CAMPBELL, Circuit Judge.

On October 2, 1972, freight trains operated by the Boston & Maine Railroad (B & M) and the Central Vermont Railway (Central Vermont) were in a head-on collision in Belchertown, Massachusetts on a stretch of track owned by Central Vermont. Three employees of the railroads were killed and two were injured. The injured employees and the representatives of the estates of the deceased employees sued the railroads in the district court. The actions by employees against their own employer were brought under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. The railroads as non-employers were sued for negligence under the common law of Massachusetts. During the trial, the B & M settled with its injured employee and the estate of its deceased employee. In the actions brought by Central Vermont employees, the jury found both railroads negligent and awarded damages against each for the deaths of two employees and the injury to the third. 1 The district court thereafter ruled in favor of B & M on its cross-claim, holding Central Vermont liable to pay all damages awarded against B & M, purportedly in accordance with the terms of the 1941 agreement which permitted B & M to use Central Vermont's track. In this appeal, Central Vermont first challenges as excessive the $35,000 which the jury awarded its injured employee, Gonyer. Central Vermont also appeals from the district court's judgment insofar as it held Central Vermont liable under the agreement for the damages which the jury awarded against B & M for the deaths of Central Vermont's employees, Bullard and Green.

I

On the day of the accident, Gonyer was stationed with two others, the engineer, Bullard, and the head brakeman, Green, in the engine of the Central Vermont train. As the train entered a straightaway in Belchertown, the brakeman jumped from his seat and yelled "B & M job." The brakeman immediately applied the emergency brake. Gonyer looked up and saw that both trains were about to collide head-on. Gonyer leaped to the right door of the engine as the other two crewmen headed for the left exit. Gonyer swung himself around, holding the iron railing outside the door, and jumped into the bushes along the embankment. He crawled to his feet, heard "something" behind him, and ran until he realized that two coal cars from the derailed train had rolled down the embankment after him but had been stopped by trees. Gonyer testified that at this point he was "shaking all over" and headed for the caboose of the derailed Central Vermont train. He did not return to the scene of the collision because he "was too scared and . . . was shaking." Gonyer also testified that by this time his right foot had begun "to get sore, or it felt out of proportion."

At the rear of the train, Gonyer joined Carley, the conductor who had been in the caboose. They walked to the scene of the collision, looked for the two missing Central Vermont employees, and listened in vain for any sign of life. Gonyer testified that he brought Carley with him because "I was afraid of what I was going to see if I went there alone, and I wanted somebody with me. I didn't dare think I could face it alone." Amidst the B & M wreckage, Gonyer came upon the dying B & M fireman Griffin who was "moaning and groaning." Gonyer continued to look for the missing Central Vermont employees, and learned the next day that they had been found dead under the wreckage. Gonyer remained at the scene for close to five hours, spending the remainder of the afternoon setting down flares to warn oncoming trains and directing auto traffic at a grade crossing.

Gonyer testified further that by evening his right foot had become so painful that he could hardly walk. He went to a hospital, had an Ace bandage wrapped around his foot and obtained a pair of crutches. The next day, his foot was x-rayed, but there was no evidence as to what the x-ray revealed, if anything. No medical evidence or doctor's bills were presented. Gonyer testified that he used crutches for a little over two weeks and a cane for sometime afterwards. His foot was "real sore" and he could not put any weight on his foot for about two months after the accident. He also testified to seeing a doctor periodically and receiving physiotherapy at a hospital near his home but there was no hospital record or other evidence about this apart from his own testimony. Gonyer testified to remaining out of work for 11 weeks. Several weeks after returning, he said he was required to take a few more days off for x-rays because his "foot wasn't the way it should be." He testified that after returning to work he had to favor his left foot as his right foot hurt when he put much weight on it. He did not state how long this condition persisted. Gonyer was earning $400 per week at this time.

Gonyer testified that his job requires him to pass the accident site nearly every day and that he expects to see the deceased members of the Central Vermont crew waiting for him as he passes. There was no other evidence concerning the physical or psychological aftereffects of the accident. No physician or psychologist testified. The jury awarded Gonyer total damages of $35,000.

In LaForest v. Autoridad de las Fuentes Fluviales, 536 F.2d 443, 447 (1st Cir. 1976), we said,

"The rule of review commonly applied by federal appellate courts with respect to civil jury awards . . . is that the jury's otherwise supportable verdict stands unless 'grossly excessive' or 'shocking to the conscience'."

And in Betancourt v. J. C. Penney Co., 554 F.2d 1206, 1207 (1st Cir. 1977), we stated,

"(I)n reviewing a jury's award we are constrained to view the evidence in the light most favorable to the plaintiff."

Under even these deferential standards of review, we conclude that the jury award in Gonyer's case, being grossly excessive, cannot stand.

From Gonyer's testimony the jury was warranted in finding that he suffered some sort of foot injury which caused him pain, disability and lost earnings for several months. 2 But the jury had no basis for believing that the pain or the disability continued to any substantial degree thereafter. While he spoke of having to favor his left foot he did not say how long the condition persisted and the jury was not entitled to speculate. We conclude that to compensate for damages, including lost wages, associated with the foot injury alone, $35,000 would plainly be excessive.

We are left, therefore, with the question whether much of the award can be justified as compensating for fright and mental anguish. Prosser, The Law of Torts 330 (4th ed. 1971) states as a general rule,

"Where the defendant's negligence inflicts an immediate physical injury, such as a broken leg . . . (courts allow) compensation for purely mental elements of damage accompanying it such as fright at the time of injury, apprehension as to its effects, nervousness, or humiliation at disfigurement."

In an early Massachusetts case, plaintiff was thrown out of a carriage and off a low bridge. He suffered minor physical damages but the court sustained a jury award of damages based primarily on "mental anguish, and the risk and peril attending the accident." Canning v. Williamstown, 55 Mass. 451, 452 (1848). And in Sullivan v. Old Colony Street Ry. Co., 197 Mass. 512, 516, 83 N.E. 1091, 1092 (1908), the court stated the general rule:

"The mental suffering, for which damages can be recovered, therefore, is limited to that which result to the person injured, as the necessary or natural consequence of the physical injury. But sentiments of grief, sorrow and mourning, which are aroused by extraneous causes, thoughts or reflections, are excluded."

Accord, Lewis v. City of Springfield, 261 Mass. 183, 187-88, 158 N.E. 656 (1927). Under this authority, which we believe states the law generally applicable in these situations, Gonyer could recover for his fright at the time of the accident but could not recover for the grief caused by the loss of his friends in the accident.

FELA cases indicate that mental distress is compensable on a basis similar to that in Massachusetts and the other common law jurisdictions. 3 Where plaintiff suffered severe frostbite, the Second Circuit held that "the jury could also consider in its computation of damages the fear and anxiety which plaintiff experienced in knowing of the ever-present threat of amputation." Hayes v. New York Central R. Co., 311 F.2d 198, 201 (1962). In another FELA case on point, the Missouri Supreme Court approved a jury instruction permitting damages for "mental suffering . . . he has endured to date by reason of such (physical) injuries." Adams v. Atchison, T. & S. F. Ry. Co., 280 S.W.2d 84, 94 (1955).

The jury was therefore entitled to compensate Gonyer for the elements of mental distress properly attributable to this...

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